Standing Committee E

[Mr. Eric Illsley in the Chair]

Immigration, Asylum and Nationality Bill

Eric Illsley: Before we resume the debate, may I for the benefit of the Committee point out that I intend to suspend at around 4.30 pm for one hour to give hon. Members a comfort break?

Cheryl Gillan: On a point of order, Mr. Illsley. Can I just clarify what you anticipate the sitting hours to be this afternoon, as you are giving us a comfort break from 4.30 pm until 5.30 pm? Have you had any indications at all as to what time we may sit until tonight?

Eric Illsley: The indication is, as far as I am aware, that the Committee will sit late until it achieves the progress that is agreed between the usual channels. The idea of a comfort break for an hour at 4.30 pm is to enable people to eat, refresh themselves and then return for the later part of the sitting.

Clause 4 - Entry clearance

Amendment proposed [this day]: No. 24, in clause 4, page 3, line 9, at end insert 
'or 
(c) following a course of study of more than six months duration at an institution on the approved register for which he has been accepted.'.—[Mrs. Gillan.] 
Question again proposed, That the amendment be made.

Eric Illsley: I remind the Committee that with this we are discussing the following amendments:
No. 78, in clause 4, page 3, line 9, at end insert 
', or 
(c) entering for any other purpose prescribed by order for the purpose of this subsection.'. 
No. 83, in clause 4, page 3, line 9, at end insert 
'or 
(c) entering for settlement as a returning resident in accordance with the provisions of the immigration rules'. 
No. 84, in clause 4, page 3, line 9, at end insert 
'or 
(c) entering in accordance with the terms of any provision of the immigration rules which relates to a provision of community law'. 
No. 90, in clause 4, page 3, line 9, at end insert 
', or 
(c) entering for any other purpose prescribed by regulations for the purpose of this subsection.'. 
No. 91, in clause 4, page 3, line 9, at end insert 
', or 
(c) entering as the dependant of a person authorised to study or seek or take employment or of an authorised self-employed person in the United Kingdom, as prescribed by regulations for the purpose of this subsection.'. 
No. 104, in clause 4, page 3, line 10, leave out 'Regulations' and insert 'an order'. 
No. 80, in clause 4, page 3, line 20, at beginning insert 
'in the circumstances specified in subsection (1)(a) above,'.

Neil Gerrard: I will be brief. I wish to make a couple of comments about the group of amendments and the wider debate on them. Given the time that we have spent on the clause already, we shall probably not have a clause stand part debate.
I understand some of the points about appeal rights disappearing that the hon. Member for Chesham and Amersham (Mrs. Gillan) made in moving the amendment. Many hon. Members have concerns when appeal rights disappear, not least for the selfish reason that I mentioned in the debate on clause 1. The disappearance of appeal rights on anything to do with asylum and immigration almost always leads to an increase in our work load. People without appeal rights do not just go away—they will be in touch with us. 
Although clause 4 deals with entry clearance rather than with people who are already in the UK, many people who apply for entry clearance will have relatives here—that is certainly the case in family visits and even student visa applications. Sponsors in the UK are not necessarily family members, but they often are. 
We will get the fallout when appeal rights disappear. We get the fallout now when there are delays in the system. The periods that can sometimes elapse waiting for case statements to be sent from the overseas post to the Home Office and on to the asylum and immigration tribunal is often a source of complaint and problems. 
I suspect that the points scheme will improve matters. The hon. Lady suggested that nothing should be done unless there is an entirely objective system. To ask for a system that is 100 per cent. objective is to ask for the impossible. Whatever rules one makes or whatever points systems are devised, it will be absolutely impossible to devise a system that will cater for every conceivable set of circumstances. We are dealing with individual people's individual circumstances, and those circumstances will all be different in some way. Those of us with experience of other points systems, such as that relating to local authority housing applications, know that however carefully things are done, there is always scope for disagreement, argument and concerns about exactly how objective the process has been. However, the points system in immigration will at least make the situation much more transparent than it is now. It will be much easier to see the basis on which decisions are taken and to compare one set of decisions with another. One hopes that it will make it much easier for entry clearance officers to take decisions that are consistent within a post and from one post to another. 
I hope that my hon. Friend the Minister will address a specific point in replying to the debate,  whether or not he is minded to accept amendment No. 24. Under the clause, he has the power to make regulations that will affect who does and does not have rights of appeal and the grounds on which people might appeal. It would be useful to the Committee if he gave some indication of his thinking on that. 
It would also be helpful if the Minister responded to a further point. He is aware that a very significant number of hon. Members have concerns about changes to appeal rights for family members, and particularly about the possibility of oral appeals disappearing. I recall dealing quite recently with a student visa case in which the sponsor in this country going to the oral appeal and convincing the adjudicator of his credibility was a very significant factor in the appeal being allowed. A very considerable number of hon. Members, particularly Labour Members who deal with large numbers of asylum and immigration cases, would welcome hearing the Minister's thoughts on whether he might be able to think again about just how far he will go on family appeals. 
My final point relates to points made earlier by the hon. Member for Chesham and Amersham. I understand that the Minister would not wish to tie himself down to a commencement date that depended on an organisation outside the Government and the Home Office. However, there will be an issue about the commencement date of all the provisions in the Bill. In relation to some of what has been said about the quality of decision making, about the efforts that the Minister is making and about the introduction of a points scheme, it might be helpful if he gave some indication of the lines along which he is thinking as regards commencement dates and how a commencement date might relate to what is being done on the points scheme and on reducing some of the delays that currently occur in the system.

Evan Harris: This group includes amendments Nos. 78, 83, 84, 90, 91, 104 and 80, in my name and that of my hon. Friend the Member for Manchester, Withington (Mr. Leech). I shall dispose of them quickly; I want to ask only a couple of questions of the Minister.
Amendments Nos. 78 and 90, which offers an alternative wording to that of amendment No. 78, would give the Government more powers to make regulations to allow a wider range of appeals against refusal of entry clearance than just the ones listed in the Bill. It needs to be understood that I do not consider regulations to be the best way to restore people's rights, but given that that is the architecture of the Bill, we are asking the Government why they have chosen to limit the grounds on which they can do that. 
Amendments Nos. 83, 84 and 91 relate to three specific groups and prompt questions about those groups. Amendment No. 83 would preserve the right of appeal for those who have already been granted indefinite leave to remain—that is settlement—who are applying overseas to be permitted to re-enter for that purpose. That group of applications currently has a right of appeal, but the Government's stated intention, while removing appeal rights from students and  workers, fails to mention that group, which may be an oversight. Only a small number are likely to fall into that category, but the right of settlement that they want to exercise should not be denied to them without good reason after it has been granted. Giving the right of appeal would avoid those applicants feeling that they had cause to pursue human rights claims or judicial review, which would be more expensive and complex and not necessarily the most appropriate way to proceed. I hope that the Minister will think about whether he is willing to consider that small group. 
Amendment No. 84 refers to those seeking to gain their rights under immigration rules relating to a provision of Community law. I raised that matter under clause 1 and I will not repeat at length what I said. I asked the Minister to let me know his response to the examples given, preferably by the end of our debate on the proposal. The examples were Swiss nationals, and nationals of countries with relevant association agreements within the EU—Bulgaria, Romania and Turkey—who are seeking to enter for the purposes of businesses or self-employment. There is also a further example: non-European economic area nationals who are the primary carers of children resident here who themselves have rights of residence in accordance with the European Court judgment on the Chen case. Denial of a right of appeal in those cases may bring the UK into conflict with Community law and give rise to more expensive litigation, which could be avoided by providing for a right of appeal in such cases, although that is a narrow point. 
Amendment No. 91 would give the right of appeal, or at least the right to be considered for it under regulations, to people 
''entering as the dependant of a person authorised to study or seek or take employment or an authorised self-employed person in the United Kingdom, as prescribed by regulations for the purpose of this subsection.''
That would allow a right of appeal against the refusal of applications for individuals who wanted to enter the UK as the dependant of an individual granted entry into the UK. 
Amendment No. 104 does not really belong in the group, and I mention it only because I want to return to something the Minister said earlier. He said that he thought that the negative resolution instruments were an acceptable way to deal with the issue—I hope that I am not misrepresenting him. It is not how the Government have always dealt with appeal rights, because section 29 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, in amending section 88, provides for an affirmative order to be the way forward. I shall be grateful if the Minister will clarify what is significantly different in this Bill to enable it to depart from that precedent. 
Amendment No. 80 is relatively specific. Its construction is complex, but it would limit the reference to the person in the UK needing to be settled here to cases where the person seeking entry clearance to join them is applying for settlement and not just to visit. An application from a family member of a person who is living lawfully in the UK with permission to stay for a long period, for example, as a businessman, graduate student, researcher and so  forth would appear to lose any right of appeal under clause 4 as drafted. 
My point is similar to that made by the hon. Member for Walthamstow (Mr. Gerrard). People who are already here are seeking for people to join them. They know how to contact their Members of Parliament and if the clause is accepted as drafted, there will be extensive use of Members of Parliament to raise these matters with Ministers in the immigration and nationality directorate, which is time consuming. Indeed, there may also be inappropriate reliance on human rights claims. 
It is not clear that there has been any abuse of this provision at present, as the relatives to be visited will all be lawfully in the UK and most of them will be gainfully employed to the benefit of this country or engaged in higher education. Again that is a specific issue. In the interests of constructive debate, I should be grateful if the Minister could respond to the points that the amendments seek to probe.

Tony McNulty: Many of the hon. Lady's points about students are well made. I am with her all the way along until she says how disruptive the Bill will be. As we have discussed, a number of things are going on in the higher education sector. I do not believe the last part of her speech where she almost says, but not quite—this is an over-characterisation—that all the ills that currently beset the HE sector result from visa fees increase or what the Bill seeks to do to appeal rights.
I am keen to work as constructively as I can with the HE sector and to address broader issues such as the buoyancy of our economy, the level of currency and the fact that many competitor nations are getting their act together far more readily than they have in the past 20 years. I will discuss those matters in detail at the joint action taskforce. I will discuss them tomorrow morning with Universities UK. I am keen to go forward. 
Let us be clear what we are talking about, not just on these amendments, but in the broader sense of clauses 4 and 1. It is not correct to say that any tweaking of the rules and regulations in immigration and asylum legislation is always simply in response to abuse. It is unfortunate that sometimes the debate is characterised in those terms. To look for a substantive evidence base that there has been abuse as the reason for a change is misguided. We are looking for the most productive and, as my hon. Friend the Member for Walthamstow says, transparent and clear set of rules and regulations so that everyone, including the applicants, understands exactly what is going on and, if a decision goes the wrong way, understands the precise reasons why. 
Reform is not always prompted by abuse. Of course there has been abuse on the student side, largely by institutions here rather than individuals. I freely accept that. We will try to address that with the Department for Education and Science. It may be parliamentary  badinage, but it is inappropriate to quote my right hon. Friend the Prime Minister in an entirely different context from the early 1990s. The context is entirely different because the reform, investment, resources and all the other elements of the five-year plan and the points system were not on offer and on the table in terms of appeal rights at that time. 
We are trying to get to a stage where there is clarity, transparency and everything else in the system for all concerned. We want to reach a stage in the context of entry clearance and appeals where a number of things happen. Yes, there will be that transparency and clarity. Yes, there are improvements to the decision-making process. Yes, the sponsor has a stronger role and greater responsibility, especially in education and employment cases, but within a context of almost light-touch regulations for due compliance and the heavier hand where there is less than compliance from employers or individuals. It is in that context that we need to understand what is going on in clause 4 and in the rest of this part of the Bill. 
Much of what is in the clause and germane to the amendments is not to do with looking for substantive evidence of abuse in every case. We do not introduce reform only in response to abuse. We want a proper and comprehensive system. 
The clause is not about playing with and tweaking the system for the pure administrative and economic convenience of the Government—I would not stand up and promote it if it were. However, we need to be aware—I understand entirely why the debate has gone in the direction that it has—that were we to leave the processes as they are, the image given would be that appeals are instant—that they happen overnight as if by magic. Part of the reason for the provisions is that we need to address the fact that, under the existing appeal process, students, employers and others can wait anything up to two years for their case to be determined. That cannot be right, either in terms of what we want to achieve, or for the applicants themselves. 
Rather than hanging on to elements of the system that are outwith the new system, I urge the Committee to consider what we are doing overall. I do not say that just to advertise the fact that we are consulting on a five-year strategy and a points system but because those elements are central to what we are doing. I firmly believe that, by working with the education sector in particular, we can achieve what we both want to achieve in the context of what the Government seek to do. 
Nor should people run away with the notion that the timing will be thus: the Bill is secured; its commencement is instant; the points system follows perhaps a year later; and, if we think about it, we will then make improvements to the system and put in resources to improve the entry clearance officer and decision-making processes. Again, I understand why, but that is the image that the Committee has given of how the Government are operating. I will not—I cannot—be locked into some mechanistic process that says, let us do this first, and if improvement occurs—if the appeal rates go down—then let us next go there  and there. I do not believe that that is appropriate, or the way to run a railroad in terms of public policy. 
I have said, and I am happy to provide more information on this to the Committee, that we are starting the process of greater investment now, particularly in training and development and in putting more resources into the entry clearance officer process. In response to the point that the hon. Member for Chesham and Amersham made earlier: yes, I am confident that we will exact from the system the increases in efficacy and efficiency that we require. 
With a fair wind, and allowing for the vagaries of what happens in the House of Commons and in another place, I hope that by April-May next year we will secure Royal Assent, and I would hope also by then to be able to give greater assurances. We are still working through things, and progress depends on where the points system goes, how long that will take and other related matters, but there should be some notion of commencement orders for specific parts of the Bill. 
The only assurance that I can give is that the implementation of the Bill will not be instant. It would not be appropriate, the day after we secure Royal Assent, to roll out every single aspect of the Bill, and we will not do so. However, I cannot go beyond that and give an assurance that by such and such a date, through such and such a process of monitoring or whatever else is suggested by amendment No. 24 and others that relate to the heart of the clause, we will flick a switch that says that everything is fine and dandy now with the whole process so we will move towards commencement for the provisions of the Bill. Life just does not work like that. I am also convinced that the points system—there is plenty of time for more consultation on the shape of the beast—will not be introduced until mid-2007, at the very earliest. 
Resources and investment are being introduced now to facilitate the improvement that everyone wants. The points system will be introduced at the earliest by 2007, with commencement dates for the provisions of the Bill happening as and when appropriate, but not immediately. 
That cannot happen immediately because—I know by now that everyone will have lovingly read every word of the consultation paper on the points system—we are marrying the visa-issuing process and the entry clearance process, which is another issue that people have broad concerns about. If there is anything more troublesome for people, it is when, for all the system's vagaries and difficulties that Opposition Members allege there are, someone gets a work permit, a student permit or whatever else, only to find that he or she does not get a visa because of some delay. That cannot be right either. 
Central to the points system, as well as what we seek to do in the Bill, is the role and function of those at ECO level. It does not take a genius to work out that it may be some time before the provisions are implemented in full. That is why I meant it when I said that people must understand the interlinking nature of the Bill and the points system far more clearly than they thought they had to.

Evan Harris: I am listening carefully to the Minister. The key issue is the commencement of clause 4. It would be meaningless to implement bits of clause 4, because clause 4 removes appeal rights. Is the hon. Gentleman saying, and if he is not perhaps he can make it clear, that clause 4 will neither be implemented immediately nor until the points system is in place? Or is he saying that he cannot guarantee that clause 4 will not be implemented before the points system is introduced, let alone has bedded down?

Tony McNulty: As I have tried to say, I cannot say that in that strict sense. I can say that it will not happen instantly—the first part of what the hon. Gentleman suggests—but I cannot pre-empt the final nature and shape of the points system. If I cannot pre-empt that, I cannot pre-empt the transition period from that to the final points system. We think that it will happen roughly about mid-2007, but, like many of these matters, as and when we can introduce elements of the points system earlier, we shall.
I shall give one small example. If Members look at the first tier of the points system, the plan to replace the highly skilled migrants programme, without pre-empting the consultation, will probably not be miles different from what it is now. That may be introduced at an early stage. 
If I do know at this stage every detail—the nature of the transition or the nature of the final position—I cannot say absolutely that clause 4 will not be introduced until after the points system. To be helpful to the Committee—I say this on a personal level, so do not put me up against a wall and hold me to this—I think that it is very unlikely that clause 4 will be implemented before, at the very least, the transition period between the absolute points system and the introduction of elements of the system. 
The entry clearance function, to which clause 4 and the amendments relate, is central to—far more than people readily understand—the points system. They are inextricably linked. Do not shoot me should some of clause 4 be implemented before the points system is introduced, but in all likelihood it may not. In all honesty, do not push me further on that, because further I cannot go. Three or four processes are unfolding simultaneously. I want to ensure that all of them are interlocking before we go down that road. 
I understand the concerns in terms of the higher education sector. As my hon. Friend the Member for Walthamstow suggests, we shall get to a stage where everything is far more transparent. I agree with him, too—otherwise road blocks would run this place rather than MPs—that 100 per cent. objectivity is a fool's errand. Do not go there, because there is not 100 per cent. objectivity. 
Furthermore, it is in our collective interest, in public policy terms, for there to be that flexibility in the system and for it not to be as sharp and rigid as 100 per cent. objectivity would imply. To the extent that it can be, there must be clearly defined flexibility in the system in the context of how the process will unfold. It is not about simply ticking boxes and adding points up, although that is a large part of the measure.

Evan Harris: May I strongly endorse what the Minister said in affirming what the hon. Member for Walthamstow said? Flexibility is needed. That is one reason why I think that he and I have the same view about maximum numbers or limits for immigrants or, indeed, asylum seekers: the necessary flexibility would be lost for hard cases or for cases that did not fit in and for which we would want discretion to be used.

Tony McNulty: I am grateful for that. I also agree with much of what the hon. Member for Chesham and Amersham said, but for different reasons. Other things are going on in relation to Chinese students than simply issues of visas, entry clearance and appeals. I return to the point that I was making. As robust as our education sector is—indeed, largely because of its high quality—we want sponsors to have much more responsibility than is currently apparent. We want a light-touch regulatory system that says to those at the top who comply in full, ''Get on with it'', for all the reasons that we agree on, about the valuable contribution that overseas students make. But we are coming for those at the other end who have abused and may continue to abuse the process. That is at the sponsor end. Linking things far more readily back to the sponsor is very important. No educational institution, wherever it is in the food chain, for want of a better phrase, will have to do more under the new points system and these elements of legislation than it should be doing already.

Cheryl Gillan: But will the Minister accept these points? I fully appreciate that there are more things going on with students from China. For example, China is becoming much more self-sufficient in its own higher education system. However, the Government have tightened up on visas and entry clearance since the attack on the World Trade Centre. We have examples, one of which involves the university of Derby, in which I am interested, with its new campus in Buxton, up in the Peak district. A group of about 20 students usually come from China through the university's partnership with Dong Cheng technical vocational school in Beijing. This year, for no apparent reason, something went wrong with two thirds of their applications and two thirds of the visas were refused. I understand that it is possible that that happened because the British embassy in China moved to a paper-based system for visa applicants and required information to be presented in a particular way. The Minister must admit that if something such as that happens it is hard for the higher education sector to have confidence in the system that he describes in his response to the amendment.

Tony McNulty: I do not know the details of that case, but I will happily look into it if the hon. Lady wants me to. However, there is much more going on, not least the proximity and the increasing competitiveness of educational institutions in the far east itself. Students from the far east always used to come to western Europe or the US. I am not thinking only of institutions in Australia and New Zealand; institutions in the far east itself are getting their act together far more readily. We can agree, if the case happened in the way suggested by the hon. Lady, that  it should not have happened. We also need to agree that we want and will actively pursue collaboration between institutions here and in China and that we recognise collectively, across all parties, that we ignore China and the potential of its students and its wider economy at our peril. If the hon. Lady wants to pursue that individual case with me, I will be happy to look into it, but I remain confident about what I have said about the future system.

Cheryl Gillan: The issue is not merely the loss of the students from China, which may or may not be critical to the course that is being run, but the forward planning for the higher education establishment itself. It would have planned on having greater numbers. Instead of 350, it will have planned for 400. Suddenly, all its agreements and domestic arrangements for following the courses will have been disrupted. If there is a downturn in what is happening—it will, I still believe, be exacerbated by this measure—that makes things doubly difficult for these organisations. That is what I am trying to impress on the Minister.

Tony McNulty: Again, I accept that except for the last point. I profoundly believe, from the work done thus far with the joint education taskforce, which is continuing, that there is mutual interest in the Government and the higher education sector working together. That includes the clarity, transparency and other elements suggested by my hon. Friend the Member for Walthamstow that will come from this Bill, unamended by these amendments, and all the other elements that we are taking forward with the points system. I also need to repeat the point that I made about the amendments. There is not a substantially different appeal regime or an absence of an appeal regime in our competitor countries.
I have two final points. We are looking at this and I will not be rash enough to accept an amendment, but I take the point about the regulations that fall out of the treaty obligations of the European economic area, in relation to accession countries and other associate countries like Switzerland. Some cases may fall between the various provisions, as implied by amendment No. 84. I suspect that they may be few in number, as the hon. Member for Oxford, West and Abingdon (Dr. Harris) suggests. I therefore ask him to withdraw the amendment, but I will look further at it. If we need to, we will come back either with an amendment that fills the gap or an explanation of why the gap he thought was there is not there. On amendment No. 84, I am being nice but the others are not necessary.

Evan Harris: I am grateful to the Minister for his comments on amendment No. 84. Is he saying that he has looked at amendment No. 83, which also deals with a small number of people in a special case, and rejects it, or is he not in a position to comment? Is he ruling it out altogether or is it worth holding out hope that further scrutiny might lead him to consider whether that would be appropriate?

Tony McNulty: I am grateful. We think that amendment No. 83 is otiose. We are talking in the Bill of restricting appeal rights for those settled only on family visits. Clearly, the position of the dependants of those not settled, but here entirely  legitimately for employment or education, will remain the same. It is entirely proper that family visits are afforded to those who have already achieved settled status. If I have got that wrong, I am sure that someone, somewhere will tell me. I would crush any hopes about amendment No. 83. I am being magnanimous about amendment No. 84 because we think that is unnecessary, given that the rights that the amendment seeks to preserve are already preserved and we are not doing what is implied by the amendment.
I will expand on the last point at another time and probably on paper. The issue of family visits starts from what we had in the strategy document. That is currently still our position. We are looking at the notion of charging, a redefinition of family and simply paper appeals, not oral appeals and other similar elements. I really do not have the time, and it would probably be out of order under this particular set of amendments, to go into family visits; suffice it to say that it remains a fluid issue. Much of it is outside the scope of the Bill and more about rule changes, but I am more than happy on an appropriate occasion, either in Committee or outwith Committee, to go into more detail about where my thinking is at on how to implement the policy, as outlined in the five-year plan. I could go on for another half an hour about where I am at with family visits, but the Committee would not be terribly grateful if I did. 
Therefore, I sound the caveat that I shall return to the issue in Committee, or on paper or outside Committee if that is more appropriate. Very important and legitimate points were raised about family visits side in relation to the amendment. In that context, given the unusually nice and generous comments about one particular amendment, I ask that all the other amendments be withdrawn for the reasons that I have suggested.

Cheryl Gillan: I am sorry, Mr. Illsley. The Minister seems to spend his life disappointing me, so I will disappoint him. I have no intention of withdrawing amendment No. 24. In fact, I shall seek to divide the Committee on it simply to make a point.
I am not sure how familiar the Minister is with the higher education sector's feelings, not least because he has never attended a meeting of the joint education taskforce, as he said earlier. Is that right or did I mishear him?

Tony McNulty: I fully intended to go to the most recent meeting. It had been in my diary for ever to go for the morning. Subsequently it emerged that, for whatever reason, it was in its diary that I was coming there all afternoon. Neither of us could switch in the end, so I am to attend the meeting at the end of October. Mea culpa, mea culpa—shoot me. So, no, I have not.

Cheryl Gillan: That is the best invitation I have had all day, Mr. Illsley. The only trouble is that I have left my gun at home. That is rather sad, because it puts the entire debate in context. The Minister, although eminently in charge of his brief and well briefed by his officials, has yet to attend that august body.

Tony McNulty: There have been two meetings of the taskforce. I was in post six weeks at the time of the first one, albeit, as I have suggested already, that came after the visa increase, so it was not a terribly auspicious beginning. There was one subsequently. I shall attend the third one and I am seeing Universities UK tomorrow. My door is always open.

Cheryl Gillan: Methinks he doth protest too much, Mr. Illsley. We shall take it as an excuse. The downturns in enrolments are relevant, because of the continuous erosion process that has occurred. First we had, in 2003, the introduction of charges for leave to remain. I am sure that the Minister, although he has not been long in his post, will remember that. There have been big increases in the charges for leave to remain in 2005. The changes to the application process in China, as I mentioned, seem to have led to a big increase in refusals. There are now big increases in charges for initial entry clearance. As the Minister will appreciate, they were introduced at the worst possible time in the application cycle.
More importantly, Mr. Illsley—the Minister needs to take this on board—those charges were introduced without warning or consultation. The fear in the higher education sector, which has not been addressed in the Minister's response to the amendment, is that, coming hard on the heels of those changes, the abolition of the right of appeal will further damage applications and result in more no-shows, because potential students have no right of appeal whatsoever.

Evan Harris: Heaven forfend that I should ever suggest through the hon. Lady that the Minister might have a figure wrong, but I am led to understand that the JET has met five times. If that is the case, it might be useful for her to give the Minister an opportunity to correct the record. I shall not get involved in a private argument, however.

Cheryl Gillan: I am grateful to the hon. Gentleman for informing the Committee. I am sure that the Minister is eternally grateful for the information provided by the hon. Gentleman. I now know why the Minister protested so much.
The Minister is on dodgy ground because he said that not all cases are due to abuse, which I appreciate, but he cannot provide any evidence. Whatever happens, I do not think that the Government have any way of tracking what an applicant for a visa does—that is, whether that applicant actually enters the UK.

Tony McNulty: I am told by the magic of something happening behind me that the figure was five rather than three. I am grateful for that correction. I shall be attending the sixth. My point is not that cases are open to abuse but that not every single addition to, change to or correction of the existing system is always prompted by abuse. Our goal is as transparent, as objective and as efficient a system as we can possibly get, and we are moving towards that. It is not that cases are often open to abuse but that change is not always prompted by abuse.

Cheryl Gillan: That is right. I appreciate that; we were almost talking at cross purposes. I do not know how the Minister can judge the issue, because he has no mechanism by which to do so. Some reports state that about 17,000 students never show up to study, but there is no way of providing any hard data on the matter or knowing what happens in the sector. The Minister must be able to confirm that there is no idea in Government circles, at any level, whether these people ever come to the UK. If the hon. Gentleman is relying on evidence or data—I should like to think that the Bill is an evidence-based measure—it is not there and the Minister does not have it.
The Minister has yet to have the privilege of attending the Joint Education Task Force, but it has no power to alter the Government's proposals in the Bill, so the Committee is the appropriate place to deal with them. It is such a shame that the Minister did not come armed with the background of having attended, because this Committee is where we could make the amendments, not in the JET. It is a useful body; it follows a long period of turbulence with decision following decision without any consultation or warning, such as in the case of the increase in fees, often at the worst time in the student cycle. 
I hope that the JET will help to improve the situation but it was not warned or given an opportunity to discuss recent increases in fees for initial entry clearance, for example, before the Government made their decisions. Without having advance notice of the publication of the Bill, it is hard to see how the JET will help in terms of outcomes except in limited areas. I hope that the Minister will take note of that. 
The Minister referred to the fact that our major competitors do not have right of appeal against the refusal of initial entry clearance, but in Australia, which we have quoted widely, students can appeal against the refusal of leave to remain; they are charged more than £1,000 to do so. However, if the appeal is successful their money is refunded. 
The Universities and Colleges Admissions Service reports a 21 per cent. decrease. There is a problem in international student recruitment because it is strong and growing. Although there has been an increase in applications of just over 3 per cent., there has also been a sharp downturn from the key markets, such as China, which the Minister and I agree should be ignored at our peril. The increase is in surges from countries such as Nigeria and Pakistan which, sadly, have little record of converting applicants into real students. 
The OECD has reported that the UK market share of higher education fell faster than that of any other OECD country, from 16.2 per cent. in 1998 to 13.5 per cent. in 2003. Members report that the visa changes are the biggest factor in putting students off from coming to the UK. It is therefore of little surprise that I have tried to give so much emphasis to this amendment and this part of the Bill. 
The Minister's assurances on the commencement of clause 4 are comforting—they are cuddly and nice. He  is being nice to me and trying to give a good impression. However, the Minister is asking the organisations that provide higher education in the UK to trust him, and it is hard to see that that trust would be well founded. That is nothing personal against the Minister; it is the Government's track record. 
I am glad that the Minister is meeting Universities UK, because it has some concerns about how objective and successful the new points-based immigration system will eventually be. Although that measure is still at the consultation stage, the problem is, as the Minister himself admitted, that the detail is so unclear that it is difficult for those organisations to take on trust that appeals will no longer be necessary. 
I still maintain that the Government should be demonstrating an improvement in that quality of initial decision making long before abolishing the right of appeal. I appreciate the Minister's attempts at reassurance, but they fall on deaf ears.

Evan Harris: I support the hon. Lady in seeking to press amendment No. 24 to a vote, if that is her plan, for the reasons that she has given.
I take this opportunity to confirm to the Minister that I will not be pressing any of my amendments in the group to a vote. We have discussed amendment No. 84. However, I should be grateful if, in respect of amendment No. 83, I could, through the hon. Lady, ask the Minister to clarify in the clause stand part debate whether he is right that the terms of the—

Eric Illsley: Order. There is no guarantee of there being a clause stand part debate. I shall be the judge of that.

Evan Harris: I should be grateful if it could be clarified later whether if advice is actually given, that applies to appeal on entry and not just the terms of the regulations, in respect of the question of settlement. However, I accept your ruling, Mr. Illsley.

Cheryl Gillan: I appreciate that I was just being used by the hon. Member for Oxford, West and Abingdon to make his point to the Minister, which I am sure the Minister is well placed to deal with.
I shall reiterate one or two points before I finish. Earlier, we were talking about being careful about identifying institutions, because we do not want to talk down that market—I would be loth to think that we were doing that. This is the only forum in which we can debate the issue, and the only forum that can make the amendments that are being sought by the higher education establishments. 
In the public sector, there are reports which the Minister should address. I gave the example of the university of Derby, but other vice-chancellors report similar dips to those occurring at Derby. For example, the vice-chancellor of the university of East Anglia says that his university's declining numbers of overseas students will mean the loss of £1 million to the UAE. The university of Essex has also reported a fall, and the vice-chancellor of Southampton Solent university says that its numbers are about 10 per cent. down,  from around 300 students to 220. Again, the main reason is that the numbers of Chinese students have dropped by about three quarters. The vice-chancellor of Southampton Solent gives as the first and main reason that 
''the government has tightened up on visas and entry clearance.''
He continues: 
''Without the income from overseas students, our higher education system would be bankrupt quite literally.''

Andy Burnham: I am listening to what the hon. Lady has to say, but did she not stand at the recent general election on a manifesto that required limits on immigration? Is she saying that that did not apply to any visas given for study purposes?

Cheryl Gillan: I do not believe that I personally said anything about immigration from my platform during the hustings for the last election in relation to overseas students coming to study at our higher education establishments. I am rather sorry—

Edward Miliband: Will the hon. Lady give way?

Cheryl Gillan: Hold on a second.

Eric Illsley: Order. We will not pursue a debate about election manifestos or issues that are outside the scope of the Bill or the amendments.

Cheryl Gillan: I congratulate you on a sterling piece of chairmanship, Mr. Illsley, because I thought that we were having a serious debate, and low-level political interference from the junior Minister is not to be welcomed. This is a genuine debate and I am sorry that he stooped to those levels. I try not to do that myself and I did not do it when I was a Minister either.
I should like to finish my response to the excellent, if disappointing, reply from the Minister for Immigration, Citizenship and Nationality to this group of amendments. The new universities in particular are so worried about the issue that their umbrella group—Campaigning for Mainstream Universities—has, I believe, already made representations to the Government. The Minister has to do a great deal to win back the confidence of the higher education sector. It feels that it has constantly been under attack by the erosion of one of the most important aspects of its role in this country. I am afraid that the assurances that the Minister has given us about timetabling, joined-up government, the points system being in place and the improvement to the overseas postings decision-making process do not convince me, and I do not believe that they will convince the people who briefed me on this occasion either. Therefore, with some regret, because I thought that the Minister might give a little on this issue, I am forced to press amendment No. 24 to a vote. 
Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

Andy Burnham: I beg to move amendment No. 55, in clause 4, page 3, leave out lines 28 to 32.

Eric Illsley: With this it will be convenient to take Government amendments Nos. 56 to 58.

Andy Burnham: I believe that we all have an interest in making progress this afternoon, and with these amendments we can be brief. The main one is Government amendment No. 55, which removes subsection (3) of proposed new section 88A in clause 4. Government amendments Nos. 56 to 58 are consequential on the removal of that subsection. My hon. Friend the Minister of State, who has briefly left the Committee, is fond of describing Opposition amendments as otiose. In the interests of balance we can acknowledge that that description could apply to a small section of our own Bill.
The amendment removes the order-making power in clause 4(3) to remove full rights of appeal in entry clearance cases. The power was taken by the Government in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and was intended to be used to remove full rights of appeal by the specification of provisions of the immigration rules. Perhaps it would help the Committee if I gave an example of the kind of scenario in which it was envisaged it would be used. It could have been used to remove full rights of appeal for people refused entry clearance to study, but who fail to satisfy the requirements of the rule that their educational institution must appear on the register of providers. 
Under clause 4, full appeal rights in entry clearance cases are conferred by the making of the regulations that we have been discussing today. There is therefore no requirement to retain the power currently contained in subsection (3). That is why in the interests of keeping our legislation tightly drafted, the Government intend to remove it from the Bill. The other amendments are consequential, and I hope that they will be accepted. 
Amendment agreed to. 
Amendments made: No. 56, in clause 4, page 3, line 33, leave out 'Subsections (1) and (3)' and insert 'Subsection (1)'. 
No. 57, in clause 4, page 3, line 34, leave out 'do' and insert 'does'. 
No. 58, in clause 4, page 3, line 36, leave out 'are' and insert 'is'—[Andy Burnham.]

Humfrey Malins: I beg to move amendment No. 11, in clause 4, page 3, line 37, at end add—
'(5) The Independent Monitor may make recommendations to the Home Secretary concerning the reasonableness of any decisions made relating to grants or refusals of entry clearance.'.

Eric Illsley: With this it will be convenient to discuss the following: Amendment No. 20, in clause 4, page 3, line 37, at end add—
'(5) Subsections (1) to (4) will not take effect until such time as a review procedure carried out by immigration judges on circuit at entry clearance posts is deemed to be operating satisfactorily by the Independent Monitor.'. 
Amendment No. 21, in clause 4, page 3, line 37, at end add— 
'(5) A person who may not appeal under section 82(1) shall be entitled to request that a refusal of an application for entry clearance is reviewed by the Independent Monitor or his appointee.'. 
Government amendment No. 59 
Government amendment No. 60 
Government new clause 2—Failure to provide documents.

Humfrey Malins: Amendments Nos. 11, 20 and 21 cover the same ground. In short, they examine and strengthen the role of the independent monitor. We have heard some powerful speeches from my hon. Friend the Member for Chesham and Amersham in the last few days about appeals and international students. It follows from those speeches that the Opposition feel strongly about the need for appropriate checks and balances against the Government.
The original independent monitor was Dame Elizabeth Anson, who did a sterling job and continued to take a great interest in these matters for all her career. We now have a new independent monitor and the Government are advertising for a full-time post. One of the purposes of the amendment is to probe the Government much further on their intentions for the more formal role and the new job of independent monitor. The current entry clearance monitor, Fiona Lindsley, whose report was published in February 2005, rather implied that she did not consider that the time that she was under contract to devote to her task—50 days—was sufficient to conduct a thorough review of the entry clearance decisions in her remit. She says: 
''50 days is a short period to produce such a report and there are issues that I have not been able to research or develop as much as I would have liked within the time constraints. It will be for Ministers to consider whether it would be worthwhile spending more funds for a more detailed exploration of the issues''.
The Government have now advertised the post of entry clearance monitor as a full-time post, and that is a welcome step forward. I would be grateful if the Minister could give the Committee a detailed indication of how the new entry clearance monitor will operate. 
I wish to ask the Minister specific questions about the independent monitor, which I hope that he will be able to answer in his replies. How many files does he expect the new independent monitor to inspect and what percentage will that represent of his estimate of the number of refusals that will not have a right of appeal under his legislative proposals? At present, the entry clearance monitor has responsibility for monitoring refusals in cases in which there is no right of appeal. Those include non-family visitors; students who apply for entry clearance to follow a course for which they have been accepted and that will not last more than six months; students applying for entry clearance to follow a course for which they have not been accepted; dependants of students in the cases just described; and applicants who have been denied rights of appeal in accordance with section 88 of the Nationality, Immigration and Asylum Act 2002. 
A problem with the independent monitor is the limits put on what she can do. She can monitor and report, but she cannot take up or make decisions on individual cases. As the Government go down the road that they are taking for this new appointment, perhaps the Minister will say a bit more about the powers that the independent monitor will have. An applicant who has been wrongly refused, without the right of appeal, has no redress even if the monitor identifies clear maladministration. I am not sure whether the position will change under the proposed new arrangements. The monitor will simply be able to make recommendations based on observations regarding wrongful refusals of entry clearance. 
The monitor's recent report is worth looking at. It is highly relevant in relation to my amendments. The monitor highlights several points in that report. First, many visa applicants in the categories that the monitor covers have been wrongfully denied visas. Secondly, there have been significant increases in visa refusal rates but no investigation into the factors that may contribute to that trend. Thirdly, improvements are needed in the explanation of visa refusals. Fourthly—this is a point that my hon. Friend the Member for Chesham and Amersham has made in earlier debates, and we are quite conscious of its importance—previous refusals, says the report, are taken into consideration. That is a worrying trend. Fifthly, inappropriate refusals are used for students—a point that my hon. Friend has made tellingly on earlier occasions. Finally, complaints are not dealt with properly and ECOs' training must be improved. 
What is the overall view? I quote from the independent monitor's 2005 report: 
''In my reports on decisions taken in 2002 and 2003 I have estimated that some 28,000 applicants have been wrongfully denied rights of appeal as a result of the misinterpretation of simple, objective rules about lengths of student courses and named family relationships. Further I find it hard to conceive how exercising a right of appeal from abroad could constitute an abuse of immigration control, although removing appeal rights may save time and money for the Immigration Appellate Authority.''
Figures have abounded throughout the debate on the refusal rates for students, which are significantly higher than for non-settlement applications. 
Bodies such as the Immigration Advisory Service, which you may recall, Mr. Illsley, I had the honour to  found and which has over the years done a magnificent job representing those with rights of appeal under immigration law have themselves had notable successes on appeal rates for Immigration Advisory Service-represented students—38 per cent. in 2002–03, 49 per cent. in 2003–04. That is an extraordinarily high success rate. It is a matter of congratulation for the IAS but of great worry to members of the Committee because if the initial decisions had been different, or better, they might not have been in that position. 
I read very carefully the Minister's letter to the hon. Member for Oxford, West and Abingdon dated 18 October, which is about three days ago. I congratulate the Minister on writing a letter on that date; I was in a neighbouring Committee this morning when we were expected to rely on documents provided to us only late last night. He deals with several very important issues in the letter. He recognises the need to improve quality of decision making, and I applaud him warmly for that. What I say now is no reflection on the integrity, honesty or sincerity of those who make these decisions at our posts abroad, and at home for that matter. They work very hard under great pressure and are to be commended on their efforts, but for many years the quality of the initial decision making has been a cause of great concern.

Cheryl Gillan: I, too, read that letter. I am impressed by the work underway to improve the quality of decision making, but would my hon. Friend agree that it is not just a matter of the regime that the Minister has set out in that letter but of the pay packets of those individuals? For example, I understand that the Immigration and Refugee Board of Canada pays its case workers the equivalent of between £43,000 and £50,000 a year, but an executive officer in the immigration and nationality directorate gets only about £18,000. It probably comes hard to the Minister to hear a Tory asking for money to be spent on civil servants' salaries, but if the quality is to be improved, surely the remuneration needs to be increased, and the calibre of those people improved. If you pay peanuts, you get monkeys.

Humfrey Malins: My hon. Friend hits on a very important point. It reminds me of my parliamentary question a year or so ago on this very subject requesting details of the salaries paid to the officials who make these important decisions at home and abroad, and the length of training that they have. I was very disappointed by the reply. First, the length of training seemed to me to be very short indeed, a view that was shared by hon. Members on both sides of the House when I raised the matter on an earlier occasion. Secondly, as my hon. Friend rightly pointed out, the salaries were very low, which perhaps would not attract those of the highest ability, for obvious reasons they will want a better paid job elsewhere. She is entirely right to draw the matter to our attention.
While not committing my party to any particular policy, I agree with my hon. Friend. I feel that there is a good argument for ensuring that those who make the decisions are properly remunerated. As I have said time after time, that is because they are sometimes life-and-death decisions. They are not unimportant decisions; they can be critical not just to individuals  but to families and the more important the decision, the more impressive should be the credentials of the person who is making it. 
Interestingly, in the letter that we received from the Minister, for which I thank him again, he talks about enhancing the role of the independent monitor, who is the subject of my amendments. I appreciated receiving the letter. 
I intend no discourtesy to the Minister, but I think that he missed one or two of my remarks when I opened the debate. I spoke then of the Government's plans to create a full-time post, and offer a broad welcome to their steps in that area. 
I shall quote from the Minister's letter, as it is worth putting on the record. He says: 
''We are proposing to change significantly the role of the Independent Monitor for entry clearance refusals without the right of appeal (IM): we envisage enabling the IM to make regular reports to UK visas closer to real time,''—
not a phrase that I am awfully fond of, but I think that I understand what it means— 
''rather than a long annual report, and for us to be able to respond more quickly to lapses in quality identified in these reports. We have appointed an additional member of staff to liaise with and support the IM.''
There are a number of other matters set out in the annex to the letter under the heading: 
''Work underway to improve quality of decision making.''
which are not for debate in this section of the Bill, but I sincerely wish the Minister and his Department the best of good fortune in taking that work forward. Many people will be watching with interest to see how it develops. 
We are trying, in one way or another, and initially through the amendments, to ensure that justice is done and that the quality of decision making is improved. Amendment No. 11 would permit the independent monitor to 
''make recommendations to the Home Secretary concerning the reasonableness of any decisions made relating to grants or refusals.''
That would enable the independent monitor to have a real hands-on approach, and to take up individual cases if appropriate. 
Amendment No. 20 would require there to be 
''a review procedure carried out by immigration judges on circuit at entry clearance posts.''
That review would determine whether the system was operating satisfactorily. 
There is an argument for the greater presence of a number of people at posts abroad. For example, the Immigration Advisory Service has a number of offices abroad and can therefore provide a service on the spot. That gives real help to applicants. 
Imagine the case—I exclude myself, as I am not an immigration judge—of visits by judicial officers in this country to some of our posts abroad and their review of the situation and how it is working. That could produce some most interesting results and could be very worth while, because the whole purpose would be  to ensure that the decisions that are being made are fair, decent and right. 
Amendment No. 21 would entitle a person to have a particular refusal 
''reviewed by the Independent Monitor or his appointee.''
There is a lot to be said for that. I want to give the independent monitor more teeth, to provide a check on the Government and their officials. 
When the Minister replies—I am not sure which Minister will reply. If it is the Minister for Immigration, Citizenship and Nationality, he may be at a disadvantage in not having heard the debate in its initial stages, or perhaps he will be none the worse for that, since I am moving the amendments. Perhaps it will be his colleague, the Under-Secretary of State for the Home Department. Whichever Minister responds to the debate, we in the Opposition would find it helpful to have a lot of detail about the proposals for the independent monitor—as much detail as the Minister can give us. Linked with that we would like some details—this is critical, and is the point of the amendments—of the powers of the independent monitor and their ability to get involved on behalf of some of the most disadvantaged people in the world, many of whom, by definition, need the most help and support because of their own lack of resources.

Evan Harris: I wish to comment briefly on the three amendments tabled by Conservative Members and I hope to catch your eye, Mr. Illsley, to respond to the Government amendments after they have been moved.
We support amendment No. 11 because it is reasonable that the independent monitor should independently monitor, and there is plenty to monitor, as the hon. Member for Woking (Mr. Malins) said. I think that there is a role for the independent monitor not only to make recommendations, but to have a more direct influence on Government policy, rather like the independent monitor of the anti-terror legislation. Lord Carlile is often referred to before policy is made and has a much greater influence on policy. I accept the point made by the hon. Member for Walthamstow that some people might not wish the independent monitor to set Government policy or wish that to be delegated outside the Government, but it would at least be within the bounds of reasonableness for the independent monitor to set a time at which certain policies can be implemented or to make recommendations as in the amendment. 
I have already spoken to amendment No. 20 in a different form and I do not intend to repeat my comments, but I did pledge to the Minister for Immigration, Citizenship and Nationality that I would consider the point that he made in response to an amendment along these lines about the import of the National Audit Office's comments on the competence of entry clearance decisions. He said, I think with fairness, that the NAO had said that in 34 per cent. of cases in which there is additional evidence, that may not have been available to the entry clearance officer. The words in the paragraph are  ''may not'' so it is not clear whether, in all 34 per cent., the additional evidence was not available to the entry clearance officer when they were making their decision. As I understand it from speaking to experts since the Minister made the point, it is nevertheless the case that additional evidence usually comes through the post and it is an opportunity and good practice for entry clearance officers to look at the matter again. I will continue to look where the Minister directs me as regards whether what I said was correct, but I do not think that there is enough evidence to assert that the general thrust of my concerns was not correct. 
Amendment No. 21 is a probing amendment. It refers to the independent monitor being available to consider individual cases. That is not the best way forward; the best way forward is, of course, not to remove appeal rights in the first place and to have a sensible, well staffed appellate function in the areas that we are discussing, but I can understand the point made by the hon. Member for Woking.

Eric Illsley: Order. Before I call the Minister, I should clarify something. Although Government amendments are listed with amendment No. 11, the Minister is not required to move them at this stage, because they are out of sequence with where we are in the Bill. They will be formally moved later, but they will be debated as part of this group.

Tony McNulty: I apologise for not being here at the start of the comments by the hon. Member for Woking. I wanted to go to the little boys' room before he resumed and was late because of traffic and other reasons. In another capacity, the balance between security considerations—not least what has been done at Black Rod's end of the Palace—and Members' ability to get into the Palace are things that we should look at.

Henry Bellingham: Try a bike.

Tony McNulty: I shall not indulge that comment from the hon. Member for North-West Norfolk (Mr. Bellingham), although it was his first, which I am grateful for. Forty minutes later, I went to the little boys' room, so I apologise for missing the start of the comments by the hon. Member for Woking. I accept much of what he said about the independent monitor and I am grateful for his comments about the direction in which we are trying to move with that. He will know that currently the independent monitor works for 50 days a year, produces one report based on a limited sample of cases and reviews only cases that do not attract a full right of appeal, quite rightly. We are seeking to move that to a full-time post by the end of the year. The monitor would still look at a sample of cases that do not attract full right of appeal, but would make twice-yearly formal reports to us by way of feedback. I agree about the clumsiness of the phrase ''in real time'', but the Committee will know what that means—we are trying to use real instances to demonstrate the quality of decision making, rather than just receiving a regular annual report. It is important to say that there will be no changes to the powers of the independent monitor; the post will merely move to full-time. We understand that the role is very important. 
One of our aims is to enable the monitor's report to be more regularly used, not only to monitor quality but to promote it. If we receive both our official reports and the more routine reports during the course of the year, and they reflect more closely what is actually happening rather than being retrospective, we will be able to achieve that aim, as noted by the hon. Member for Woking—my brief says ''my hon. Friend'', and I shall admonish somebody later for that, but for now I am more than happy to speak of him in those terms. 
It will be a full-time post. The monitor will review as many cases as is considered necessary to establish a robust assessment of the quality of decision making. We will set no limit on that; it will be a matter for the person in the new, full-time post to assess what is needed in order to get to grips with the notion of quality. There can be broad agreement here except about the direction in which we are moving in terms of the independent monitor. 
I would hope that if that person is in place by the end of the year, as anticipated, we shall be able to avail ourselves of that new full-time role in order to discuss with him or her not simply what follows from the passage of this Bill, but other matters such as the role and function of an ECO; decision making outwith the Bill in terms of the five-year plan; and, crucially, the points system. We need to marry together all those elements, as well as the rule changes that are required. It is only appropriate that I find some mechanism to ensure that the independent monitor is party to our discussions as we develop the system. 
Turning quickly to the amendments, amendment No. 11 expands the remit of the independent monitor for entry clearance, as the hon. Member for Woking has suggested. We do not believe that it is the purpose of primary legislation to—shackle is too strong a word—impose on the independent function what this Committee determines should be part of the job. The postholder will have a very broad remit in terms of exploring the quality of the entire decision-making process, and if we accept amendment No. 11 there will be too great an overlap between his or her work and that of the immigration appeals tribunal. 
I know that the hon. Gentleman was down the corridor when we discussed what I call the air miles amendment—that is, the notion of judges tootling round each ECO post to determine quality subsequent to the commencement order for anything that is in the Bill. As I said previously, that is not the most appropriate way to determine quality at the posts, nor would it probably—to put it generously—be the best use of the time of the hon. Gentleman's judicial brothers and sisters. We do not think that the air miles amendment is appropriate. Nor is it necessarily appropriate for there to be a formalised link between individual cases and people who are dissatisfied with the way their appeals have been determined and the independent monitor. 
Again, that is moving away from the independent monitor's important role of overseeing the quality and efficacy of these assorted processes. If the independent  monitor is in place by the end of the year, and if the Bill returns to us from the other place in April or May, I would be more than happy to facilitate a discussion between the new appointee and about how he or she views the independent monitor's role panning out. Clearly that is to some extent dependent on the appointment being made by the end of the year. I will certainly keep Members informed about that. 
I am grateful for the amendments in as much as they have prompted the debate. I fully accept and understand the important function that the independent monitor must have, which is why we are seeking to make it a full-time post. For the reasons I have outlined, the first and third of these amendments go too far and confuse the oversight role with other elements of the independent monitor's role. 
As I did earlier, I cheerfully dismiss the air miles amendment as an inappropriate way to lock in the genuine concerns of increasing quality before we commence various provisions in the Bill. With all those comments in mind and in appreciation of the hon. Gentleman's comments about the enhancements we are carrying out with the independent monitor, I ask him to withdraw the amendment.

Humfrey Malins: I appreciate the tone of the Minister's reply enormously, though the content did not satisfy me. The fundamental difference between us is simple. The amendment seeks to permit the independent monitor to make recommendations to the Home Secretary concerning the reasonableness of any decision made. We want the independent monitor to be able to look at a particular case and, unless I have misunderstood the Minister, under his proposals the independent monitor will not be able to do that.
As we think that the ability to look at a particular case on behalf of an individual is so important I will press this to a Division. I see behind the Minister a number of Labour Members who have a track record of supporting the position of the appellant and who do not want to see anything at all done in their name that would damage those interests. I am therefore hopeful that the Division will be closer than the Government Whip may think.

Evan Harris: On a point of order, Mr. Illsley, do the Ministers intend to debate amendments Nos. 59 and 60 and the new clause? If the hon. Member for Woking withdrew his amendment it might end the debate on this group. I thought that one of the Ministers want to speak to the Government amendments. I should be grateful for clarification about the options.

Eric Illsley: We are debating a group of amendments beginning with amendments Nos. 11, 20 and 21 and including Government amendments Nos. 59, 60 and new clause 2. If the Minister chooses not to debate those amendments in the contribution he makes to the Committee, it is entirely up to him. If the hon. Gentleman wishes to raise Government amendments Nos. 59 and 60 and new clause 2 he should initiate that debate as part of the debate on this group of amendments. There is nothing to prevent him from discussing the Government amendments. The confusion has arisen because the hon. Member for Woking spoke to his amendments, to which the  Minister has responded. If the hon. Member for Oxford, West and Abingdon wants to illicit a response from the Government, he should speak to the Government amendments.

Tony McNulty: Further to that point of order, Mr. Illsley. For the sake of clarity and completeness, I should say that I have responded to the hon. Member for Woking. I did not know that I had only one pot. I fully intended, after he had finished his remarks, at least to mention the two amendments, albeit very much in passing because they are simply consequential, and to say a little about new clause 2, if I may.

Eric Illsley: That is entirely appropriate.

Humfrey Malins: I understand the situation. I shall respond very briefly to the Minister's very well intended comments on my amendment.
In a few minutes, I shall move my amendment formally and put it to the vote. This is my preliminary response to the Minister, and no doubt the debate will continue before I put my amendment to the vote. On that basis, I shall resume my seat, and no doubt the hon. Member for Oxford, West and Abingdon will want to say a word or two about matters that he discussed a second ago.

Evan Harris: I am grateful to the hon. Gentleman for holding back from pressing his amendment to a Division, if he was ever intending to do so; I believe that the Minister intends to speak to the three amendments, as he said, and I shall wait for him to do so before I respond. I imagine that the hon. Member for Woking will decide what to do to dispose of the lead amendment before then.

Tony McNulty: Let me say briefly in response to the hon. Gentleman's response to me before I respond to the exhortation to enact my intention of speaking quickly to the Government amendments and the new clause that the third element of the amendments tabled by the hon. Member for Woking could, as I read it, if it was written into the Bill, mean that every one of the 250,000 applications for entry clearance as a student in 2004 that was subsequently refused could be formally sent to the independent monitor for the further scrutiny that the hon. Gentleman suggests. Indeed, there is no provision in the Bill to do otherwise.
With my hand on my heart, I must say that if we want to go in that direction, we might have to reconsider the resources available to the independent monitor, because that is not part of the role of independent monitor, as currently envisaged. It would unnecessarily ramp up expectations that simply could not be delivered, despite the enhanced role that we are affording the independent monitor. I say that in response to the hon. Gentleman, and I shall move on. 
I do not want to dwell on Government amendments Nos. 59 and 60, because members of the Committee will understand that they are consequential to many of the other elements in clause 4 and should have been included when we drafted the amendments. They are not new in the sense that they do not introduce  anything new to the equation. New clause 2 does add to the equation, which is why I intended to speak to it after our brief debate within the debate on the previous three clauses. 
Section 88 of the 2002 Act limits the availability of a full right of appeal in cases in which unsuccessful applicants fail to meet certain basic requirements set out in the section. Those limitations apply where an application has been refused on the grounds that the applicant does not hold a necessary document or where he does not meet another specified requirement of the rules; for example, he has applied for leave to enter as a dependent child but is too old to meet the requirement of the relevant provision of the rules. The new clause extends the scope of section 88 of the 2002 Act so as to restrict the availability and full rights of appeal in cases in which the applicant has failed to supply a medical report or a medical certificate as required by the rules. The provision would apply where an applicant for entry clearance was required by the immigration rules to hold a medical certificate confirming that he was free of tuberculosis but failed to supply such a certificate. In that situation, an appeal against a refusal of entry clearance could be brought only on the grounds that the decision was racially discriminatory or a breach of the applicant's human rights. It is the absence of documentation that is the issue.

Evan Harris: Will the Minister give way?

Tony McNulty: The amendment is fairly important which is why, for change, I am reading what I am told to read rather than doing things in my own way. I shall finish what I am reading and then I will happily give way.
The amendment of section 88 is designed in part to tie in with the Government's implementation—not roll-out—of the programme of targeted tuberculosis screening for entry clearance applications. The Government announced in our five-year asylum and immigration strategy to control our borders that we are implementing our existing powers by targeting health screening for tuberculosis in high-risk areas at the entry clearance stage. Those who are diagnosed will then need to seek treatment at home before being allowed to enter the UK. 
The first phase of the programme, which covers four countries, has already begun. Immigration rules already provide for entry-clearance applicants or arriving passengers to be refused entry clearance or leave to enter for failure to produce a requested document or medical report. Despite what has already been implemented and what has happened under immigration rules, the new clause is required to complete the legislation. 
Although, given that it is a matter of statute, the measure refers universally in the first instance, as immigration rules do, we are focusing the proposals on four countries—high-risk areas is part of the definition—and we seek fully to assess and evaluate that before we move beyond the four countries.

Evan Harris: I have a series of questions and perhaps I can ask them by way of interventions, which will be quicker. The Minister said that it starts with TB; is he  aware of any plans in the Department to include HIV testing in this sort of provision?

Tony McNulty: I thought we were going to get the whole list, but I was wrong. Unless I am told otherwise, from my perspective the answer is no. It is rather like saying that it is in four countries at present but we need the universal provision; again there is the universal provision in terms of medical documentation as well as other documentation added by the new clause. In this instance, the pilot is purely for TB screening. The hon. Gentleman will understand why it is universal in terms of ailments, for want of a better phrase, rather than being specific to tuberculosis, as is the reality.

Evan Harris: I understand that. Clearly, the statute is general; the Minister's intention in terms of implementing certain policies is specific. I am assuming that his Department and the Department of Health have evidence that implementing such a scheme for TB will reduce the incidence compared with not doing so. Will the Minister give an undertaking to provide the evidence, advice or information that he has from the Health Protection Agency if such information exists? Could he give that simple undertaking so that we can see what underpins the proposal with regard to TB?

Tony McNulty: If I can, of course I shall. When I say high risk, it is commonly accepted that something like 40 cases annually in over 100,000 population is a notional measure of the high incidence of TB, which affects a range of countries. I add that caveat because I do not remember in their entirety every stick of paper we have seen in arriving at this position, but I shall put as much of it as I can, if not all of it, before the Committee.
Secondly, it is in order and appropriate to look at specific countries with very high risk to see if the correlation that the hon. Gentleman suggests can supplement the existing evidence. On the figures that I mentioned, there are currently 135 countries that would come under the measure of high incidence of 40 cases annually per 100,000. Clearly, it is not appropriate to include all 135 in the first instance but I am more than happy to provide that information if I can. It is very early days, but bearing in mind my caveat about the parliamentary timetable, if there is more to say and report on that matter by the time we get to the end of our deliberations, I will be more than happy to keep the Committee informed. 
Again, there is no silver bullet to deal with tuberculosis in this country—absolutely not. The hon. Gentleman knows far more about the incidence of the disease than I do, given his background, but it is right and proper that we at least examine whether the new clause does what I think—and he suggests I think—it will in the context of the four countries. I hope that that is helpful.

Evan Harris: I do not want to go too far into the medical details, as we will not be able to progress. The Minister is wise to stick to the briefing that he has given. However, I want to make one point, to which we may have to return. He kindly provided a race  equality impact assessment. I am working on the assumption that the measure is acceptable in terms of race equality only if there is good evidence, or at least no counter-evidence, that it will be effective. The Minister will discriminate against people indirectly on the grounds of race and nationality, depending on the countries chosen. That can be considered legitimate only if he has good evidence to go on, or at least information to suggest that such discrimination would make a difference to public health. Will he at least accept that premise? We can return to examine the measure in detail in another format and not deal with it now if he will simply accept that he will have to do some thinking about how it would make a difference that would justify its impact.

Tony McNulty: No. 1, if we thought that the measure would not make any difference at all, we would not introduce it. No. 2, this Government and, I suspect, any other Government would not offer anything that countered either the human rights legislation or the ability, which there is, to discriminate in very specific circumstances between nationalities on the basis of substantive evidence as per the Race Relations Act. In that context, I commend new clause 2.
As I said, I do not offer any disdain for the Committee by gliding over the other Government amendments. They are elements that should have been in the Bill and are consequential to other elements that we are discussing. For the sake of brevity—for which, of course, I am renowned—I shall glide over them.

Evan Harris: I am keen to respond to the amendments and new clause, and hope that I will not pre-empt points that the hon. Member for Woking was planning to make.
Government amendment No. 59 provides what I believe the Government need to provide under the 1951 United Nations convention relating to the status of refugees because it allows those who are appealing—despite the provisions of clause 9—against a decision to refuse to extend their leave following recognition as a refugee, to retain their current leave with attendant rights such as the rights to work and to family reunion, during the period between refusal and the final determination of the appeal. Therefore, the correcting amendment is welcome. 
Government amendment No. 60 is more substantive than the Minister indicated. He may wish to comment on it. Does he at least accept that the amendment reduces parliamentary scrutiny? Whether he thinks parliamentary scrutiny is justified or not, the amendment reduces it by changing the circumstances in which regulations describing the people who may not appeal against refusal of entry clearance are subject to the affirmative resolution procedure. He is changing categories that were subject to the affirmative resolution procedure to categories subject to the negative resolution procedure.

Tony McNulty: Purely as a consequence of what is happening elsewhere in the Bill. That is why I said that the amendment is consequential. It should have been part of the Bill in the first place, and that is why I glided over it.

Evan Harris: Okay. I shall not repeat the points that we made earlier about the need for parliamentary scrutiny.
Government new clause 2 deals with a contentious area in which the Government ought to tread with care. There is no more sensitive trigger for tabloid headlines than to seek to marginalise people and prey upon fears around immigration and asylum than reports that imply that people are coming to this country carrying contagion and wishing to exploit the NHS, and, in exploiting the NHS, are the reason why someone's grandma cannot get her hip done, and are creating public health problems. Those things are meat and drink to irresponsible parts of the media. They touch all the buttons that cause problems for race relations and problems in relation to the status of immigrants and asylum seekers. The only thing not mentioned is sex offending, which some people will doubtless try to include and blame on asylum seekers as well. 
That is why the Government ought to tread with care and have good evidence before going along with the call to screen people that has been made by the Conservative party. To ensure that the Government are treading carefully and also to ensure compliance with race relations legislation, I asked the Minister to provide the information that he has been given by the Health Protection Agency about the impact of this measure in the four countries where it has been rolled out as a pilot—or initially implemented, to use his language—and about the impact that there will be when it is extended further in 135 countries. If the justification does not exist, the provision is extremely dubious. 
I understand that in order to do what the Minister wants to do with respect to TB screening, he feels that he needs to amend the Nationality, Immigration and Asylum Act 2002. Clearly, I am not happy with that, but it is not worth pursuing it further here. I will give him one example of how it is important that, when he gets advice from someone, he treats it with care. If large numbers of people were coming to this country with active TB, they would be diagnosed pretty quickly because it is hard to have active TB and not access health care services. 
If the burden of TB falls on people who are born abroad, which is what the figures show, one would think that, if those people were newly arrived immigrants, the vast majority would be diagnosed in year one. I think that the figure is in the region of only 10 per cent. I have a fat file on this matter from my medical days and my days in this House. That figure implies that the burden of TB in this country falls on people who may be British citizens and are certainly settled here—often from the Indian subcontinent—who may have their TB reactivated or become re-infected when they visit home. That is what the evidence suggests. 
I would be cautious of predicating a policy on the idea that lots of immigrants are arriving with TB and of stating, as the Minister's race equality impact assessment does, that 
''nearly two thirds of our TB patients were born abroad''
and 
''about half of the TB patients who were born abroad are diagnosed with the disease within five years of first entering our country''.
If a person has active TB, it will take a darn sight less than five years to diagnose them. That is why the Government may be being led astray by calls from the Conservative party for action in this area. If the Government can provide the evidence, I will withdraw my opposition to new clause 2 and, if they cannot, I will catch your eye at the appropriate moment, Mr. Illsley. However, I am grateful to the Minister for his willingness to put the information in the public domain so that we can test the assertion about the race equality impact assessment.

Eric Illsley: Before I call the hon. Member for Woking, I should point out that when we come to new clause 2 it will simply be moved formally and voted on. The opportunity to debate new clause 2 is now. If the hon. Gentleman wishes to raise any further points, the only opportunity that he has is the debate on this group of amendments.

Humfrey Malins: Having said all that I want to say, I simply support amendment No. 11.

Tony McNulty: I will not respond to that excellent speech by the hon. Member for Woking, but I do want to refer briefly to some of the points made by the hon. Member for Oxford, West and Abingdon. First, in relation to amendment No. 60, he thinks that he has caught me out because the affirmative procedure is in play. However, if all that we have decided to do is accepted, the affirmative procedure will relate to a provision that is no longer there, which is why I said that amendment No. 60 was consequential. The amendment was simply drafted in that sense.
Secondly, I want to say as profoundly as I can that I fully accept much of what the hon. Gentleman said about those who would mischievously link asylum seekers, or even immigration, with health. 
This exercise, which started in one country and is about to be implemented in three others, is prompted by public health concerns in relation to those countries and high-risk areas and is not about indulging the Daily Mail, Daily Express and all the others who tell their rabid little tales, which apparently none of the Conservatives agree with now—they did barely six months ago. It is not about that, and I say that in the strongest terms. Regarding TB and what we are trying to do in the pilot, there is no absolute certainty that it will be rolled out to the other 131 countries that have a high incidence, but what we are doing to the system and our public health responsibilities mean that we must at least consider the position. 
There was a news story recently that effectively said that all the health ills, travails and difficulties in the NHS can be routed back to immigrants and asylum seekers because they use the health service far more than everyone else. That is complete nonsense, and there was not much evidence given for it either. I am not implying that six months later anyone in the Conservative ranks is seeking to go down that road, but that was the clear impression during the general election. 
There is a balance to be struck between not indulging that rabid right-wing dimension and backing away from everything, even where there are clear, responsible reasons why something should be at least considered. I put new clause 2 firmly in the second category, but I repeat what I have said: I will provide the Committee with as much information about progress and the background to the initiative as I can. 
Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived. 
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to the Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill. 
The Committee divided: Ayes 10, Noes 7.

Question accordingly agreed to. 
Clause 4, as amended, ordered to stand part of the Bill.

Clause 5 - Refusal of leave to enter

Evan Harris: I beg to move amendment No. 103, in clause 5, page 4, line 1, leave out paragraph (b) and insert—
'(b) if section 92(3)(c) applies.'. 
I hope that we can deal with the amendment quickly. The purpose of the amendment is to preserve the existing position in the Nationality, Immigration and Asylum Act 2002 as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, under which a passenger who arrives with valid entry clearance and is then refused into the UK has a right  of appeal from within country before removal, unless the reason for refusal is that that entry is sought for a purpose other than that for which the clearance was granted. 
Proposed new section 89 of the 2002 Act, which clause 5 will insert, will significantly reverse the burden of proof in appeals against refusal of leave to enter. Before I continue, I should state, and I am grateful to the Bill team for having clarified this, that the capitalisation and the bracketing in the amendment are slightly awry. I advise the Minister, if he has not already been advised, which I suspect he has been, that amendment No. 103 should read: 
''and insert—
(b) if section 92(3C) applies.'',
because there is no section 92(3)(c). I am more than willing to say that that was an error in my handwriting in order not to apportion blame to anyone else for that slip-up. I understand that the Minister and his team would have understood what we meant. I shall explain the amendment's impact. 
The way in which clause 5 proposes a new section 89 seems inappropriate for two main reasons. First, the passenger will have already demonstrated to the satisfaction of an immigration official overseas—the entry clearance officer—that he or she has a claim to enter the United Kingdom, so the clearance has the effect in law of constituting a grant of leave to enter the country. If the immigration officer on the control at a port in the UK is considering removing a status that has already been granted by a colleague, the burden of justifying that decision to go behind the earlier decision should rest with the officer who alleges it rather than with the passenger. To force passengers to defend themselves when someone else has made the decision seems a little unreasonable. 
Secondly, new section 89 presumes a negative. It presumes that a passenger's intention is other than specified. As I have said before, we are in a sense revisiting—[Interruption.]—the primary purpose rule, as the hon. Member for Walthamstow pre-empted sotto voce. The Government rightly dropped that rule in 1997, in a move that was widely welcomed by colleagues in my party and, I believe, in the Minister's. 
There was at least the right of appeal in primary purpose cases, even if it was always difficult to satisfy a court of someone's intentions when the person was not available to give oral evidence. The new section removes any right of appeal on a negative presumption about a passenger's intentions. The Minister should consider whether it would be more appropriate to amend the clause somewhat, even if he does not want to go the whole way in respect of what I have proposed. That is the basis for the amendment. I look forward to the Minster's response.

Tony McNulty: I take the point about the drafting of the amendment; I do not wish to pursue that. I simply say that the amendment is of no practical value. Clause 5, as drafted, already prevents a refusal of leave to enter being appealed on full grounds where entry clearance was obtained for a purpose other than that for which leave to enter was then sought. 
We are satisfied that the drafting is appropriate and that there is no need for reference to be made to section 92(3C). There is certainly no need for reference to be made to section 92(3)(c), which does not exist. I think that we are right to say that there is no need for the amendment for the brief reasons that I have offered. I ask the hon. Gentleman to withdraw the amendment and that clause 5 stand part of the Bill.

Evan Harris: I will address the first part of the Minister's final sentence. I am happy to withdraw the amendment to a section that does not exist, as the Minister put it. I am more than willing to seek leave of the Committee not to put the modified amendment while I consider what he has said He made a straightforward assertion rather than a justification, but I accept that the onus is on me to consider the points I made and whether his assertion that it is unnecessary and makes no difference is correct. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 5 ordered to stand part of the Bill. 
Clause 6 ordered to stand part of the Bill.

Clause 7 - Abandonment of appeal

Evan Harris: I beg to move amendment No. 95, in clause 7, page 4, line 25, at end add—
'(4B) This section shall not apply where an applicant's appeal has been allowed on human rights grounds but dismissed on Refugee Convention grounds and the pending appeal relates to the dismissal of the Refugee Convention claim.'. 
I am pleased that we are making progress and I hope that we shall continue to do so. Clause 7 covers the abandonment of an appeal and new section 104(4) of the Nationality, Immigration and Asylum Act 2002 provides that when an appeal is pending, it should be treated as abandoned if the appellant is 
''granted leave to enter or remain in the''
UK or leaves the UK. Under the new section, neither of those events would cause an appeal to be abandoned if it was not brought in the UK. Under the amendment, the appeal would not be treated as abandoned if the person is granted leave to enter or remain in the UK on human rights grounds if they are waiting for an appeal against the denial of refugee status. That is just about clear to me even now, as it was at breakfast, and I hope that the Minister will give a positive response to that approach.

Tony McNulty: The amendment seeks to prevent an onward appeal from being treated as abandoned if it is allowed, as the hon. Gentleman suggested, on human rights grounds but dismissed under the refugee convention. If the appellant left the United Kingdom while the appeal was pending, their claim for asylum would lapse and the appeal would be pointless.
We agree that if leave is granted for a different purpose—for example, on humanitarian grounds—while an appeal against refusal of refugee status is pending, that might have a significant effect. We will consider the issue further to ensure that the provision  would not give rise to any injustice. There is a point in the amendment, which I am not willing to accept, but I take the point. 
The provision that an existing appeal should be treated as abandoned exists to prevent resources from being wasted on hearing an appeal that no longer has relevance because the appellant has been granted leave or has left this country. It was not our intention that a person seeking entry clearance should lose their right of appeal by entering the UK and the clause puts that beyond doubt. 
An appellant in the United Kingdom who appeals against a decision of the asylum and immigration tribunal is not required to leave the country if they have an appeal pending under section 104 of the 2002 Act. However, I must consider whether the clause could have unforeseen and unjust consequences, as the hon. Gentleman suggests. I will write to him and, through you, Mr. Illsley, to the Committee with an adjustment if it would have that unforeseen consequence or an assurance that it does not. In that spirit, I ask the hon. Gentleman to withdraw the amendment and for the clause to stand part of the Bill.

Evan Harris: Given those terms and in the same spirit, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 7 ordered to stand part of the Bill. 
Clause 8 ordered to stand part of the Bill.

Clause 9 - Continuation of leave

Humfrey Malins: I beg to move amendment No. 23, in clause 9, page 5, line 2, at end insert
'including provision for a grace period'. 
I shall speak briefly to the amendment. Section 3C of the Immigration Act 1971, which provides that leave to remain is deemed to continue when an immigration application remains outstanding and the last grant of leave has expired until the applicant has exhausted any subsequent appeal rights in relation to the decision, will be removed by clause 9. This measure goes hand in hand with the provisions in clause 1. 
Currently, when a person applies for an extension to their visa, their leave to remain is automatically extended until the application has been processed and a decision made. Section 3C of the Immigration Act 1971 provides that if it takes more time to decide an application than the applicant has leave to remain, they are at least able to stay until the decision had be taken and, crucially, they have had an opportunity to appeal the decision. 
Clause 9 will remove that necessary protection for an applicant who may well succeed in any subsequent appeal. I think I can see why the Government are taking that approach, since the right of appeal against a refusal to extend leave to remain is exercisable only at the point of removal and a decision to remove an individual can be taken only once leave has expired. Someone who is protected by section 3C of the 1971 Act might conceivably be caught in a limbo in which he could neither appeal nor be removed. 
I do not think that this is a satisfactory solution, so amendment No. 23 probes how the Government intend the new scheme to work. A time-limited grace period following the refusal of an application to extend the visa would enable the Government to issue notice of their decision to remove the applicant at the expiry of the grace period, triggering the right of appeal while allowing the appellant to remain in the UK legally.

Tony McNulty: First and by the by, ''grace period''—as the hon. Gentleman will know, given his distinguished legal career—means absolutely nothing in legal terms. Were we to accept the amendment, which we shall not for reasons that I will come on to, it would have to be rewritten. There is no such recognised term.
Secondly, given the—I was going to say ''promiscuous'', but ''prodigious'' will probably do—nature of the Home Office's legislative schedule, I appreciate why the hon. Gentleman has not been in his place in this Committee all the time. These things blur when we are having so much fun, but I think that it was only yesterday—so I do not blame Hansard in terms of the record being produced—that I did a little exposition on section 24(1)(b) and (c) of the 1971 Act, which addressed that point. I said that we would consider the notion of whether, in primary legislation or in rules, we should address entirely the point. I took the point that if there is only one appeal and it is only invoked on a decision to remove, there would be some gap. I have undertaken to consider that matter and to address it.

Humfrey Malins: I was in Committee at that time; I think that it was when the Minister accused me of having being in the House for more than 20 years by 1971. I had to correct him as to my age in no uncertain terms.

Tony McNulty: I remember vividly the hon. Gentleman protesting that he was only 18 at the time. I do remember and I apologise; he was in the Room.
In the main, following the comments that I have made about the term grace period, which he kindly accepts, and those about considering precisely the terms captured by the amendment—which I accept was tabled long before yesterday's deliberations—I hope that he will withdraw his amendment.

Humfrey Malins: The amendment has been a useful probing amendment and I am grateful for the Minister's response. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Question proposed, That the clause stand part of the Bill.

Evan Harris: I rise briefly to pick up on the point that the Minister has just made about his willingness to consider the matter. As he is aware, many people are concerned about clauses 1, 4 and 9 together, and particularly clauses 1 and 9. That is not only because they might create a hole, but because it does not seem well to distinguish between people who apply for extensions in time, particularly in relation to clause 1, and those who fail to. 
Could the Minister clarify whether he recognises not just that there will be a problem if the removal appeal is not triggered until some time after the refusal, but that there is also the problem that people who seek a time extension will be punished to the same extent as overstayers? Does he accept those points? 
My second question is: if the Minister considers that the point that he has just accepted may require a revision of the Bill through an amendment, when are we likely to see that amendment? That will have an impact on how we proceed both in the Committee and on Report. Can he give an undertaking that if primary legislation is needed, he will indicate that by letter, even if the clauses cannot be drafted during the Committee stage? We would all appreciate that; it is a critical point that has been raised both by Opposition Members and by the hon. Member for Walthamstow. It would help us and would mean that we would not seek a stand part debate.

Tony McNulty: First, I have not just accepted that point. As I said, I did so yesterday when I accused the hon. Member for Woking of being absolutely illegal. Had he been in the House in 1971 aged 18 he would have been conning the public and breaking the law, because I think that the minimum age limit at that time for being a Member of Parliament was still 21.

Eric Illsley: As it still is.

Tony McNulty: As it still is—and it should be changed. I believe that it has changed at local government level but not at our level.
So I have not just accepted that point. I have accepted the problem that the hon. Member for Woking has raised again, of clauses 1, 3 and 9 and their interlocking nature, which we have spoken about today and over the past couple of days, and how they relate to all those issues vis-à-vis section 24(1)(b) of the 1971 principal Act. I have undertaken to consider that matter, and if I can, I will try to get back to the Committee on that before Report. 
In passing, however, given that when we have considered clause 11 and schedule 1 we will effectively have put this element of the Bill to bed, I do not accept that that has an impact on the rest of the Bill and our deliberations on it. However, I do undertake to consider how that delay, and all the other points that have been raised, relate to the interlocking nature of clauses 1, 3 and 9. That includes some of the points that the hon. Gentleman raised. I have said clearly that if primary legislation or rule changes are needed, or if greater explanations are required from me as to why neither of those two things are needed, I will happily come back to the Committee with those elements. 
Question put and agreed to. 
Clause 9 ordered to stand part of the Bill. 
Clause 10 ordered to stand part of the Bill.

Schedule 1 - Immigration and Asylum Appeals:

Amendments made: No. 59, in schedule 1, page 27, line 9, at end insert 
'3A After section 82(3) insert— 
''(3A) If a person has made an application for variation of limited leave to enter or remain, of a kind referred to in subsection (2)(fa) or (fb), and that application has been refused, his leave to enter or remain is extended by virtue of this subsection during any period within which an appeal against the refusal— 
(a) could be brought (ignoring any possibility of an appeal out of time with permission), or 
(b) is pending.''.'. 
No. 60, in schedule 1, page 27, line 29, leave out from 'orders)' to end of line 30 and insert 'for subsection (3A) substitute'.—[Mr. McNulty.] 
Schedule 1, as amended, agreed to.

Clause 11 - Penalty

Humfrey Malins: I beg to move amendment No. 7, in clause 11, page 5, line 11, leave out 'an adult' and insert 'a person'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
No. 8, in clause 11, page 5, line 25, after 'knew', insert 'or believed'. 
No. 1, in clause 17, page 8, line 16, at end insert 'or believing'. 
No. 2, in clause 17, page 8, line 17, leave out 'an adult' and insert 'a person'.

Humfrey Malins: We are moving to the part of the Bill concerned with employment, and this is the first of the clauses dealing with the civil penalty. I am sure, Mr. Illsley, that the briefer I am in moving the amendments, the more likely you are to grant a short stand part debate, when one or two matters of a more general nature might be raised.
The amendments are brief. The first seeks to change the word ''adult'' to ''person''. There is probably an obvious answer to the question that I am about to ask. Should it not be contrary to the section to employ someone who is under 18, rather than ''an adult''? There are instances of employment of young persons, which is, in a sense, almost more culpable than employing an adult. Is there any reason why the clause should not refer to a person rather than an adult? If it is supposed to refer to an adult, what is the position in respect of younger people? Would there be any penalty for someone who employed a young person who was not an adult, and who was subject to immigration control and so on? If not, why not? 
Amendment No. 8, to subsection (4), would strengthen the penalty provision by providing that the excuse did not apply to an employer who knew ''or believed'' at any time that the action was contrary to the section. It would place a heavier burden on the employer than the Bill currently does. 
Amendments Nos. 1 and 2 repeat the same  arguments for clause 17, which we will deal with later, in relation to the criminal offence as opposed to the penalty provision.

Andy Burnham: It is a relief to move to a new aspect of the Bill. I thank the hon. Member for Woking for his comments. The Conservative Administration introduced the section 8 provisions, which are along the lines of these provisions, so there is some agreement between us. I will address his specific points, but before doing so let me say that I am conscious of his wish to have a clause stand part debate. I, too, would welcome such a debate.
The section 8 offence of employing someone without the relevant immigration status was introduced in 1995. Since it came into force, in January 1997, there have been 17 successful prosecutions, so although we could support the provision, the section 8 offence has not been widely used. There have been only a handful of prosecutions in each year since the provision came into force. That is some of the background to the clauses dealing with illegal working. I believe that it will help members of the Committee if I refer them to the codes of practice that we have published alongside the clauses, to provide the detail of how they will work. 
I shall now deal with amendments Nos. 7 and 8 and, following on from those, amendments Nos. 1 and 2, which, as the hon. Member for Woking said, relate to clause 17. Amendment No. 7 would leave out the words ''an adult'' and insert ''a person''. I believe that the hon. Gentleman's concern is that the provision may leave out children or young adults—those aged 16 or younger. May I refer him to clause 21? For the purposes of the Bill, it defines an ''adult'' as 
''a person who has attained the age of 16''.

Humfrey Malins: I missed that.

Andy Burnham: It is easy to do. The reason why we are comfortable with the Bill as drafted is that the UK policy on abolishing child labour is based on existing legislation. There is sufficient protection in such legislation prohibiting the employment of children under the compulsory school age of 16. The specific legislation is the Employment of Women, Young Persons and Children Act 1920, which, unlike the Immigration Act 1971, I do not believe the hon. Gentleman was around to see into force. The 1920 Act lays out clearly the restrictions on the employment of young people under 16, and for the purposes of this Bill, they are satisfactorily covered by that legislation.
Amendment No. 8 involves an issue of some substance. It relates to the scope of the civil penalty arrangements, and it would, if accepted, restrict somewhat further the circumstances in which an employer could establish an excuse against a penalty under clause 11. The clause already provides that the excuse is lost if it can be shown that the employer knew at any time during a period of employment that it was contrary to the spirit of clause 11. The amendment would provide additionally that the employer would lose his excuse if it could be shown that he believed that the employment in question was unlawful. 
The amendment is unnecessary because in practice it would be impossible to operate a workable distinction between knowing and believing. Clause 11 is concerned with facts rather than intentions, and with facts relating to the status of the employee and the documents that the employer has checked. For the information of members of the Committee, those documents are laid out in lists 1 and 2 at the end of the code of practice on the avoidance of race discrimination while seeking to prevent illegal working. 
For example, if it can be shown that an employer knew that a document produced by an employee purporting to demonstrate his entitlement to work was a forgery, the employer loses his excuse against a penalty if the employee is an illegal worker. The inclusion of ''believe'' in this context does not add value. It is a point of semantics, but the only practical distinction between knowing and believing is that beliefs can be wrong. Knowledge implies a correctness of belief. Insofar as an employer believed he was employing illegally but it later transpired that the person was entitled to work, liability as laid out in clause 11(1) would not arise. There is nothing for the concept of belief to bite on in this context, so it would not add anything to the Bill. 
In clause 17 similar provisions are introduced relating to the criminal sanctions on employers who knowingly employ a person without valid immigration status. The same points that I made to the hon. Gentleman about young people apply. If the test were to be about believing, it could lead to intrusion by the immigration authorities trying to establish that action. 
I can reassure the hon. Gentleman that we have considered the spirit of and intention behind his amendments, but that we do not believe that they are necessary. The Bill would be less clear and sharp if we were to accept the amendments. I hope that he will withdraw them—I will keep talking until he gets back to his chair—because the Bill will retain a sharper focus if we do not accept them.

Humfrey Malins: I listened carefully to the Minister's comments—admittedly, from various parts of the Room. Occasionally, one has to give oneself an actual, not a metaphorical, smack on the wrist, and I do so now, because now I see, in clause 21, the interpretation of the word ''adult''. It just shows that we sometimes work so hard that we miss things. I think that the Minister has satisfied me completely, and that our short debate was not unhelpful. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Neil Gerrard: I beg to move amendment No. 17, in clause 11, page 5, line 17, leave out sub-paragraph (ii).
I hope that I have interpreted the clause wrongly and that the Minister will tell me that there is no problem. Subsection (1) sets out the conditions in which people should not be employed, some of which are obvious, such as that the person does not have  leave to enter or remain, or is subject to a condition preventing him from accepting employment. 
The sub-paragraph that I seek to remove concerns people whose leave to enter or remain has expired. Other provisions in the Bill may mean that there is no problem, but I am concerned that the sort of cases that I, and probably other hon. Members, currently see concern people who have temporary permission to be in the UK—perhaps through exceptional leave to remain or a work permit—and have applied to extend it. I know that the Minister will tell me that decision making is improving, but suppose that someone with exceptional leave to remain makes an application for indefinite leave to remain, and the decision takes a considerable length of time and their leave to remain expires before the decision is given. How would they be affected by the measure? It seems, on first reading, that the clause makes it illegal for an employer to continue such a person's employment when their leave expires. We discussed this, to some extent, in our earlier debates on how a person would be affected in the gap between the refusal of their application and their appeal, and the Minister acknowledged that he needs to examine some of those areas, but this problem is slightly different. 
I see significant numbers of people who are in that position, and I am sure that other hon. Members do, too. People have difficulties now, because employers frequently do not believe what the current situation is, which is that permission to work holds good until a decision has been made on a new application. I am frequently in touch with the Home Office about individual cases involving people who have that sort of problem. Clearly, one of the effects is to discourage some employers from offering jobs to people who have temporary permission to work. 
I hope that the Minister will tell me that I am interpreting the clause wrongly, and that other bits of the Bill mean that this is not a problem, but it is a subject on which I would like clarification.

Evan Harris: I lend my support to the hon. Gentleman on the general concerns that he mentions. However, not even this Bill would mean that someone who had applied in time and was awaiting a determination would be deemed to have their leave expired.
Nevertheless, all the other problems that we have raised in relation to clauses 1, 3 and 9 apply here. The Minister will confirm that the clauses as unamended—and certainly unamended to provide for a person's right to work while awaiting a removal decision that will trigger an appeal in the circumstances for which the Minister might consider making amendments—will mean that people will have to give up their work. When such people they are working in jobs that are important from a public policy point of view, such as in the health service, and while they still might, in some cases, have reasonable grounds for an in-country appeal, I cannot believe that the Minister would want that to happen. 
The hon. Member for Walthamstow has done the Committee a service by raising concern about the subject, and particularly by drawing attention to the  fact that people in such situations may already find it difficult to find work because of concerns about the sort of penalties imposed on employers who take them on.

Tony McNulty: I congratulate the hon. Gentleman, first for nicking my opening line on making applications in time. That is precisely the point that my hon. Friend the Member for Walthamstow raised. Leave to remain effectively continues while a further case is considered, if the application is made in time. My hon. Friend made an entirely fair point, and I recognise that there are continuing practical issues that need to be overcome.
Secondly, I congratulate the hon. Member for Oxford, West and Abingdon on carrying on the debate that we have had on the appeals part of the Bill, given that we have only just dispatched it—if that is not too generous a term, given that it took us three and a half sittings to do so. I give my hon. Friend the Member for Walthamstow the assurance that although subsection (1)(b)(ii) literally says ''has expired'', that does not relate to those who apply in time and carry on. We are still considering the practicalities that are in place, not in terms of rules or legislation, but in terms of persuading an employer or anyone else that the other application has been made. 
However, I must resist the amendment. I hope that my hon. Friend the Member for Walthamstow will withdraw it, as he said that it was a probing amendment. As it stands, it would take overstayers out of the equation entirely. Despite the Daily Mail, the Daily Express and everyone else, it is not asylum seekers or others who make up the largest group of those who are here in an illegal capacity, but those who, for whatever reason, overstay. If we are to have a cogent, transparent and, I would say, progressive immigration policy based on what we are doing with managed migration, we must be able to take action against those who overstay and work illegally. We cannot have a progressive system unless that happens. The amendment is actually rather destructive in that regard, and I know that that was not my hon. Friend's intention. On the terms that he suggested, I hope that he can accept my assurance.

Evan Harris: I note what the Minister says, but although I am cautious about reopening debates, I want to raise a further point. If a valid judicial review application is given against a decision not to extend leave, what is the situation in respect of the amendment and the clause? I do not know, but if a valid judicial review application has been made, or even if one is being considered, how far does the provision impinge upon people who still have recourse to the law?

Tony McNulty: If I may give a politician's answer, the only thing I know is that the answer is not yes or no. There are complexities such as non-suspense of appeals versus suspense of appeals, and a range of other issues, so with your indulgence, Mr. Illsley, I shall write to the hon. Gentleman and the Committee. 
I hope that my hon. Friend the Member for Walthamstow feels that he can withdraw this horrid and destructive amendment—for the reasons that I have suggested, rather than the reasons that he gave when he moved it.

Neil Gerrard: As the Minister appreciates, I tabled the amendment to seek information. I realise that it is drafted in a way that could cause other problems. I am glad that he has been able to give those assurances, but I wanted to be absolutely sure that the clause, in its present from, would not create a new problem for those who have made valid applications and whose leave may technically have expired.
I also welcome what the Minister said about a mechanism to ensure that employers understand the provision, and I hope that he will pursue the matter. It is a constant, ongoing problem. People who have made a valid application may have to wait for weeks or even months for it to be determined. Perhaps we can speed it up, but people can wait for some time and then find themselves in difficulties with employers—or even with the Benefits Agency if they are not able to produce something clearly stating that they are entitled to continue working or that they have permission to obtain benefits. I am glad that the Minister has given that undertaking. I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn.

Henry Bellingham: I beg to move amendment No. 69, in clause 11, page 5, line 24, at end insert—
'(3A) An employer is excused from paying the penalty if it is the first time he has acted contrary to this section, and the employer— 
(a) co-operates fully with enforcement officers; and 
(b) is willing to take help and advice to avoid the repetition of the offence;'.

Eric Illsley: With this it will be convenient to discuss amendment No. 65, in clause 11, page 5, line 28, leave out subsection (5).

Henry Bellingham: The Government keep saying that they are pro-business, that they want to listen to business organisations and that they are concerned to represent the interests of our wealth creators. A number of those organisations have said that although they support most aspects of the Bill, they are concerned that some smaller employers could be caught unawares by the legislation—and caught unfairly.
I served on the Committee that considered the Gangmasters (Licensing) Bill, and supported the hon. Member for Paisley and Renfrewshire, North (Jim Sheridan) in his determination to legislate. Places such as East Anglia have a large number of small employers in the food processing sector, who are waiting to see how that legislation beds down. They are concerned because they use a large number of gangmaster employees, and they often make mistakes. 
The Bill will toughen up the regime, but those smaller companies could nevertheless be caught out. They will be acting normally and in good faith. The amendment suggests that employers should be excused from paying the penalty if it is the first time that they have acted contrary to the provisions and, most  importantly, if they co-operate fully with the enforcement officers. If they co-operate fully and if they are willing to take expert advice in order to prevent a repetition of the offence, they are surely showing good will. 
Amendment No. 65, too, is important. Clause 11(5) states: 
''The Secretary of State may give a penalty notice without having established whether subsection (3) applies''.
Subsection (3) states: 
''An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment.''
The clause therefore gives the Secretary of State extra powers to apply the penalty notice regardless, and that is too draconian. I know that the provision has the support of many people in the business sector, but if the Minister and his team at the Home Office want to match the efforts of their colleagues at other Departments, including the Department of Trade and Industry, who are trying hard to be more pro-business and to listen and talk to businesses, they could accept our amendment, which would go some way to ensuring that the Government retained the confidence of the business community.

Neil Gerrard: I am interested in the amendment, but could the hon. Gentleman explain how it would help to deal with employers who are not very scrupulous? It seems to be an invitation to any unscrupulous employer to say, ''Okay, I'll just have a go and take a risk. If I get caught, all I'll need to do is say sorry and co-operate.'' It is an open invitation to people to try to evade the law.

Henry Bellingham: Although the hon. Gentleman's criticism is perfectly fair, I do not accept the thrust of what he says. If he spoke to organisations such as the Engineering Employers Federation, the CBI or the National Farmers Union, they would tell him that, in this particular respect, the Bill is too draconian. A lot of small companies are being inundated with extra regulations and red tape and they are finding the pressures extremely onerous.
In the spirit of making the Bill a bit more acceptable, particularly to smaller businesses, I urge hon. Members to accept the amendments.

Evan Harris: I rise briefly to give my support and that of my hon. Friend the Member for Manchester, Withington (Mr. Leech) to the amendments, and for the same reasons that the hon. Gentleman gave. It seems reasonable to recognise that such a civil penalties scheme will not be the best way to deal with the really terrible offenders who employ trafficked employees. Without the amendments, the penalties will fall too widely, hitting those who are not the serious offenders but who might have made a genuine error. They might be accused of committing an offence, but when we go into the issue in greater detail, it might turn out that they have not.
If we are to have such a civil penalty, it seems reasonable to provide for what I think we would all agree is a modest modification of the scheme through  the amendments. That would certainly meet some of the concerns of the business community, whose members, generally speaking, are not and should not be, in the business of seeking to exploit or otherwise use people who have no basis for working in this country. There are some poor practices, but without these modest amendments, the civil penalty will not be the best way to tackle them.

Tony McNulty: May I crave your indulgence momentarily, Mr. Illsley? Given that we are making such wonderful progress and might hit the counter-terrorism clauses today week because of the two extra sittings, I should remind Opposition parties that I have offered full briefings with officials on the new clauses. I hope that hon. Members will avail themselves of that opportunity through my office, because that would help us on Thursday week. I am grateful to you, Mr. Illsley, for allowing me to remind Members of that. We have just organised our own briefing, and I forgot that we needed to organise one for anyone else.
I have no problem with the sentiment and the import behind the amendments and I congratulate the hon. Member for North-West Norfolk (Mr. Bellingham) on his first upstanding contribution to the debate—as opposed to the rather strange sedentary contribution that he made earlier—and it is to his credit. However, I cannot accept it, as I shall explain. 
I accept the thrust of the CBI's comments not only about small employers, but in more general terms. To be perfectly frank, the success of many operations to capture illegal working depends entirely on the co-operation of the individual employer. It is not simply a stark, black-and-white relationship between transgressor and prosecutor of the law—the waters are far muddier than that. I would accept the amendment if what were offered in the clause were as stark as the hon. Member for North-West Norfolk—[Interruption.] That is the same chair that I destroyed during the Bill on identity cards, so we must be in the same Room.

Cheryl Gillan: Weightwatchers, Tuesday night.

Tony McNulty: Weightwatchers on Tuesday night is in the diary, I can assure the hon. Lady. It had better be the same chair; otherwise I shall stop standing all over them.
I would accept the amendment if the clause were not ameliorated by the code of practice, although I accept that it can be interpreted as the hon. Member for North-West Norfolk and the CBI suggest, and I take the points about the impact on business. We say clearly in the draft code of practice that a specific framework will cover gradation, and will offer a more lenient approach to first-time transgressors when partial checks and other elements have been carried out. For obvious reasons, which I accept, that is tantamount to the ''yellow card'' system that both the amendment and the CBI suggest. The concerns of the hon. Gentleman and the CBI are covered by the grading system, which is like the yellow card, rather than by a rather draconian interpretation with no relief for those who transgress in the first instance. 
As I have said before, we want the civil penalty regime in this clause to be operated in the context of much that we are trying to do, offering a lighter-touch regulatory framework for those who comply than exists for those who repeatedly transgress, whom we reserve the right to pursue. I hope that that is a sufficient response to the first amendment. 
Amendment No. 65 is unworkable, even if we accept its sentiments. I agree broadly with what my hon. Friend the Member for Walthamstow said in that regard, and I would make almost the same point: it would create a situation in which an immigration officer could not impose a penalty until he knew whether the employer could establish a statutory excuse. That would be to shift on to immigration officers a burden that we think falls fairly and reasonably on employers. 
It would also, as my hon. Friend said very clearly, provide a means of dodging the law by procrastinating in providing immigration officers with information through which they can determine whether the statutory excuse applies. We are trying to achieve the same thing but, as already outlined in the Bill, with the ameliorating qualities of the code of practice. We would like to tackle the issue that way, rather than the other way round. 
For those reasons, I hope that hon. Members recognise that the amendment is unworkable. The thrust of the lead amendment is already accounted for in the code of practice and I reiterate that immigration officers will, as a matter of practice, give employers the opportunity to demonstrate that they can benefit from a statutory excuse prior to imposing any penalties. The relationship is right the way round that we have it in the Bill, rather than it and its burdens being reversed in the way that the hon. Member for North-West Norfolk suggests. For those reasons, I ask him to withdraw the amendment.

Henry Bellingham: I am grateful to the Minister for those remarks. I am sorry that my first non-sedentary intervention led to his breaking a chair. I will restrict my interventions of that nature in this Committee to a minimum. Otherwise, we might run out of chairs for those on the Government Front Bench. I have listened to him carefully, and he has made some positive remarks about the code of practice, which we will digest. We reserve the right to come back to the matter at a later stage or in another place. In the spirit of what the Minister has said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No. 9, in clause 11, page 5, line 36, leave out paragraph (d).

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 66, in clause 11, page 5, line 36, at end insert—
'(da) provide information about compliance and support'. 
No. 67, in clause 11, page 5, line 36, at end insert— 
'(da) provide information about the civil penalty regime for a repeat offence'. 
No. 96, in clause 11, page 5, line 36, at end add— 
'(da) explain how the employer may be excused from paying the penalty and specify any requirements prescribed for the purposes of subsection (3),'. 
No. 97, in clause 11, page 5, line 36, at end insert— 
'(da) explain how the employer may appeal against the penalty,'.

Humfrey Malins: This is no more than a probing amendment, dealing with the method of payment and enforcement of payment. We are faced quite a lot nowadays with legislation that tells us that something will be done but not how it will be done. I am thinking only of the parallel with my work over the years in the court where, for example, a fine could be paid by cheque, by cash or by instalments, based on a person's means. Instalments are another aspect that the Minister may care to dwell on in his response.
The next point connected to that is enforcement. Quite often someone from one part of the country is fined in a court 100 miles away and there is a system of remitting the collection of that fine to the person's local court: he can simply turn up and be dealt with. There are issues relating to enforcement and method of payment. This will be a Secretary of State's penalty. How will it be enforced? Will it be enforced by attachment of earnings orders, the bringing of bailiffs and so on? There is a parallel with the criminal justice system and the enforcement of county court penalties too. The amendment is purely to probe the Government to tell us a little more about how and where the penalty can be paid and what enforcements may exist against a non-payer. My consequential amendments, in effect, revolve around the same general issue.

Evan Harris: The amendments in this group in my name and that of my hon. Friend the Member for Manchester, Withington are, not surprisingly, very similar. They would provide a requirement to explain to the employer how an appeal would work and how he or she may be excused from paying the penalty, specifying any requirements prescribed for the purpose of subsection (3), which is the provision for excuse.
I fear, as do those in the industry and employers' representatives, that, despite what the Minister said about the workings of the penalty system in the draft code of practice, the civil penalty in its current form will fall heavily upon first-time offenders and those who made errors of omission without malice and without intending to fall foul of these rules. It is important that such naïve—if I can use that term in respect of the legislation—employers should be signposted to the way that they can seek to mitigate or avoid the penalty that is being sought.

Tony McNulty: I will try to resist attacking the chair. It was in a different Committee Room, but that is two that I now have killed.
I understand entirely what the hon. Member for Woking says about the probing nature of his amendment. The civil penalties scheme will be similar to those already in statute. He is right that the Secretary of State could use the county court to recover payments. He is right about all the assorted and normal processes that prevail: warrant of execution, charging order, third-party debt or, as he  suggests, attachment of earnings. We will have to make provisions, particularly as some of these fines could be quite large, given the level of transgression. We will have to look further, if we have not done so already, at times for payment and an instalment process. That is relatively normal under the existing civil penalty regimes. 
In short, we do not want to reproduce a civil penalty regime specific to this Bill and to these offences; we want a regime that prevails in the wider term. With the greatest respect, we need paragraph (d) in order to do that. As I said to my hon. Friend the Member for Walthamstow, this is a nasty and destructive little amendment, but I know that the hon. Member for Woking did not table it for those reasons.

Humfrey Malins: I am not nasty.

Tony McNulty: No, absolutely not. That is why I sought to respond in those terms.
Amendments Nos. 66 and 67 would require a penalty notice to provide information about compliance and support. I appreciate the objectives behind these well-intentioned amendments, and I confirm that guidance will be issued to employers. I believe that that means guidance above and beyond the code of practice and that addresses the wider issues, not simply greater levels of detail and specifics. I shall inform the Committee if it does not. We need to relate this to the last part of the Bill on disclosure of information and other elements, but I am not sure whether that is right, so I shall pass on rapidly because I am temporarily confused. The guidance certainly adds to that operationally, and is the norm now in other regards. Enforcement officers will be encouraged to offer the information and guidance to employers when undertaking visits, using the draft code that I have already presented to the Committee. 
Amendment No. 96 would require the notice to include two additional items. First, the notice would also have to explain how the employer may be excused from paying the penalty. Secondly, it would have to specify any requirements set down in an order issued by the Secretary of State under clause 11(3). I believe that the two items amount to the same thing. Again, I have considerable sympathy with the objectives behind the amendment, which reflects the fact that the burden is on the employer to show that he has established an excuse by complying with the specified requirements. The Secretary of State may issue a penalty notice without first establishing whether the employer has established an excuse. 
The amendment is unnecessary, however, because immigration officers enforcing the civil penalty scheme will assess as part of their investigation whether the employer has complied with the specified requirements and established an excuse. No penalty will be served if the employer satisfies the immigration officer on that point. It would be possible to include, with the penalty, information on specified requirements in the supporting guidance to which I referred. 
Amendment No. 97 would require the Secretary of State to explain on the penalty notice how the employer might appeal to the courts. Again, I sympathise with that, but the amendment is not necessary because that information is already included in penalty notices and it is not essential to make it a legal requirement. I shall reconsider the matter and decide whether it is more appropriate to include the information in the draft code of practice, which outlines the broad system and issues, or in some of the more detailed guidance that follows from it. 
I do have enormous sympathy with all the amendments, but believe that they are unnecessary and do not add to the Bill, for the reasons that I have suggested. Many of the points, although well made, are picked up in other ways in other areas.

Humfrey Malins: I am grateful for the Minister's very helpful response. I know that he will tell us much more about the scheme and will provide us with information as time goes by. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Question proposed, That the clause stand part of the Bill.

Evan Harris: I just want to make two new points that were not covered by that group of amendments. First, I have a general concern about clause 11(7)(c), which requires an employer
''to take specified steps to verify, retain, copy or record the content of a document produced to him in accordance with the order''
paired with clause 11(7)(e), which requires 
''action to be taken at specified intervals or on specified occasions during the course of employment.''
I know that in the explanatory notes the Government have explained what they mean by ''verify'', which is a visual inspection to check that the document and any other photographic identification relates to the person concerned and, I suppose, that the dates on it are fine, but it would be helpful if the Minister would specify and clarify that. In relation to human rights, he will know that reversing the burden of proof, which is what the civil penalties would effectively do, requires the right balance to be struck regarding the onerous nature of what is required to prove one's innocence at all times when questioned. 
A particular concern is the other point that I raised about the action to be taken at specified intervals or on specified occasions during the course of employment. Without knowledge of how regular those intervals will be, there may be a considerable impact on employers. They may feel that on regular occasions they will have to summon in employees with their ID and their leave to remain. 
That brings me to my general concern about the impact of such measures in respect of indirect racial discrimination. It is important to ask the Minister about the impact that the measures—I guess that he will assert his confidence in them—will have, particularly the impact of deterring employers from employing people who look as though they might be immigrants with issues regarding their immigration status and leave to remain, which has implications for  questions of race, religion and nationality. That is particularly the case given the need to continually do this at specified intervals. 
Although the Government produced the draft code of practice on the avoidance of race discrimination in recruitment practice while seeking to prevent illegal working, which is a very important document that advises employers on how to avoid the problem, the Minister should set out how confident he is that such problems will be resolved. 
Secondly, are the provisions the appropriate way to tackle the problem? There is a belief among employers and others that the real offenders will not be caught by the civil penalty, and that it will switch the onus of enforcement from enforcement authorities on to firms. It would be helpful if the Minister would reiterate the policy undertaking that resources will be put into proactive means of identifying those dubious businesses operating in the black market using exploitative labour employment techniques, and that the Government will not rely on the number of convictions brought under the civil penalty, or on the resources raised by the penalty, as an indication of success in dealing with the real problems that can often lead to tragedy with regard to health and safety. 
I hope that the Minister accepts my comments in the spirit in which they are made. They give him an opportunity to respond to the points I have raised.

Tony McNulty: I shall, but I do not accept the hon. Gentleman's last two points. I have been asked somehow to lighten the burden on those carrying out activity that is illegal, whatever we do under the civil penalty regime. It is illegal to employ someone whose status of settlement is not a matter of record. That is an absolute fact. We are trying to grasp how to do that in an appropriate fashion.
I do not agree with the hon. Gentleman's point, which uses a normal characterisation, that it is all a matter of sweatshops and exploitation. That accounts for part of the illegal working that exists, but many of the more recent, successful operations in this regard relate to high-street supermarkets—I shall not name them—and their assorted warehouse operations. It is not just a question of sweatshops and small employers. Very significant high-street employers were involved, including household names more recognisable than that of the hon. Member for Witney (Mr. Cameron), even this week. It is not just a matter of small outfits. 
On the wider point raised by the hon. Member for Oxford, West and Abingdon, there is order-making power in the clause. We shall explore those elements in more detail with regard to guidance and a fuller code of practice, but just for completeness at this stage, ''regular intervals'' would probably be on an annual basis; certainly not less than that. The notion is not that it should be quarterly and an unnecessary burden. 
I accept the balance between getting the law right and avoiding undue burdens on businesses but I do not accept that it is an undue burden for an employer to establish that he is not breaking the law by employing someone whose status here is not legal.  That cannot be an undue burden. I know the hon. Gentleman is not suggesting that, but sometimes we can slip into such notions if we are not careful. However, how we capture that proposal is important. Through guidance, through order-making and the final position in terms of the draft, on which we still have to consult, the absolute substance of many of the hon. Gentleman's very valid points will become more than apparent. As he said I would say, we do not offer anything that contravenes the Race Relations Act or, indeed, the Human Rights Act in those terms.

Evan Harris: The Minister is right that I was not accusing him of knowingly seeking to do so. There is a draft code of practice on avoiding race discrimination in recruitment practice while seeking to prevent illegal working, so he recognises the problem. I wonder whether by publishing that code of practice he is recognising the temptation that employers might have not to employ someone who looks as though they might have immigration issues in case it provides them with extra work, regardless of whether we consider it an undue burden—I accept the point that he makes. How does he propose to monitor the impact that the new extension of policy will have in respect of indirect discrimination? I do not suggest that he means to cause it, or necessarily that it will happen, but I think there should be some monitoring technique, whether the Commission for Racial Equality has extra resources in order to do that or whether it is part of its working practice. Would the Minister agree to revisit this matter if it turned out that a problem had been caused, even if that was not the Government's intention?

Tony McNulty: Well, happily I have presented a draft on the avoidance of race discrimination, which is entirely right and proper. I want to have that duty. As I understand things, if the Bill is passed as drafted, we have an ongoing obligation under the Race Relations Act to ensure that this measure, and all others on the statute book, comply with that Act. In the normal fashion, it is in part about working with the CRE, which we need to do, and about research once the measure is bedded in for an amount of time and, as is normal for employment law, through regular engagement with the EC system and assorted employment tribunal cases. I take that point very seriously. I am grateful to the hon. Gentleman for saying what he did in a guarded way, not necessarily saying that it is absolutely certain that there will be problems of that nature; we are and will remain alive to that issue.
Question put and agreed to. 
Clause 11 ordered to stand part of the Bill.

Clause 12 - Objection

Cheryl Gillan: I beg to move amendment No. 25, in clause 12, page 6, line 13, leave out 'or'.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 26, in clause 12, page 6, line 14, at end insert
'or 
(d) the amount of the penalty would threaten the future viability of the employer's business.'. 
No. 10, in clause 12, page 6, line 20, at end insert 
'which shall be not less than 21 days.'. 
No. 27, in clause 12, page 6, line 24, at end insert— 
'(ba) set out a timetable for the payment of the penalty which takes account of the viability of the employer's business,'. 
No. 5, in clause 12, page 6, line 25, leave out paragraph (c). 
No. 68, in clause 12, page 6, line 30, after 'decision', insert 'and give reasons'. 
No. 28, in clause 12, page 6, line 31, at end insert— 
'(ba) set out the timetable for payment of any penalty after consultation with the employer,'. 
No. 29, in clause 13, page 6, line 42, at end insert— 
'(aa) allow the appeal, and specify a timetable for the payment of the penalty,'. 
No. 98, in clause 13, page 7, line 14, leave out 'or' and insert— 
'( ) if the employer gives notice of objection and the Secretary of State increases the penalty, the date specified in the notice of increase as the date upon which it is given, or'.

Cheryl Gillan: I do not want to detain the Committee as most of the amendments, imperfect though they probably are as they are partly drafted by me, are all transparent about what they are trying to do. With your permission, Mr. Illsley, I shall take the amendments and clause stand part together.

Eric Illsley: No.

Cheryl Gillan: Then I will stick to the amendments and hope that my points fall within the ambit of the debate.
Amendment No. 25 leaves out ''or'' and amendment No. 26 adds 
''(d) the amount of the penalty would threaten the future viability of the employer's business.'.''
The Minister must appreciate that there are small businesses that may fall foul of the measure and the imposition of a fine upon that business could threaten the liability of the business. In that case, the consequential amendments, which concern negotiations about a timetable for payment, should make sense, being the type of protection for small businesses that would appeal to the Minister. That is certainly the reason for amendment No. 28, in which I propose that a timetable is set out for payment after consultation with the employer. I am sure that the last thing the Minister would want to do is put one of our small businesses out of business by an unduly onerous burden.

Tony McNulty: Purely to assist the hon. Lady, I think that that is the essential import behind clause 12(1)(c), which states:
''This section applies where an employer to whom a penalty notice is given objects on the ground that the amount of the penalty is too high.''
That is not simply about the penalty being too high; all the incumbent elements of liability that she discusses  come under that provision. The amendment is otiose for those reasons.

Cheryl Gillan: I appreciate that the amendment is otiose. That is the sort of assurance that I hope to get from the Minister. By virtue of the fact that the penalty could be deemed too high, it is important to state in the Bill that a timetable would be set out for payment after consultation, because as the legislation is drafted, it does not follow that any time would be given to the business to pay.
My other amendment is also quite obvious. It seeks to insert at line 20 
''which shall be not less than 21 days.''
There should be a time limit; the period cannot be open-ended. Choosing a specific time would be sensible, because it makes the provision more transparent for businesses. 
I reserve the right to a brief clause stand part debate, if you will allow it, Mr. Illsley, as I should be interested to hear whether the Minister has anything to add to those points.

Evan Harris: Amendment No. 98 is in my name and that of my hon. Friend the Member for Manchester, Withington. I should like to draw it to the Minister's attention, because he is not aware of it. Although the amendment has been taken with the clause under discussion, the amendment is to clause 13 on page 7 at line 14. It adds
''if the employer gives notice of objection and the Secretary of State increases the date of the penalty, the date specified in the notice of increase is the date upon which it is given, or''.
That is self-explanatory. The concern is that people should not be caught by a rather unfortunate provision in which on appeal the penalty might go up, as it must in such cases. I support the thrust of the amendments in this group tabled by the hon. Member for Chesham and Amersham and her friends.

Tony McNulty: Like the previous group of amendments, I have a great deal of sympathy with these amendments and the sentiments behind them. However, we can capture far more readily most of the sentiments in the code of practice in part, and subsequently in guidance. The Bill is not the place for that level of detail, although I accept the points made.
We can and will consider whether it is appropriate in some cases for the employer who is served with a penalty to pay in instalments over a particular period, as I suggested to the hon. Member for Woking. That measure is entirely normal. I have made the point already about clause 12(1)(c) meaning far more than simply, ''Let's have a row about the level of the fine.'' It encompasses those other points about the life and viability of the business as well. 
I would defend the notion that, rather like that small word in financial adverts on television, the fine can go up as well as down. It is a useful device in normal circumstances under civil penalty regimes, preventing regular, ongoing, vexatious, capricious and downright chancy applications in the appeal process. Used sparingly, that is appropriate. We can strike a sensible balance, as we have sought to do,  between the civil penalty arrangements and the concerns of the CBI and hon. Members about the viability of business. I fully accept those concerns. This is not about driving businesses, large or small, out of existence. It is about simply enforcing the letter of the law. 
I would freely admit that section 8 of the Asylum and Immigration Act 1996 had consequences that were different. We have been able to pursue some of the business organisations concerned for charges far more serious than those in section 8 of that Act. In some cases, as I suggested earlier, in the end the co-operation of the employer to stop illegal working had greater value in public policy terms than adding another scalp. 
Without going into all the details of why the amendments are technically flawed, which would be unkind at such a late hour in our deliberations, I will give the assurance that most of what is requested will be in the guidance that we offer. That is the right and proper place for that level of detail. In that context, I ask that the amendments are withdrawn and the clause stand part.

Cheryl Gillan: I am grateful to the Minister. It was a probing series of amendments to see what was in the Minister's mind. It is better when we can have the draft guidance when we are considering legislation such as this, as it is the sort of detail that can be discussed. [Interruption.] It is not the draft guidance.

Tony McNulty: We are halfway there.

Cheryl Gillan: The Minister is saying that we are halfway there, but we do not have the draft guidance, nevertheless, and it is therefore necessary to table such amendments. I have no hesitation in withdrawing them and I shall be interested to receive my own personal copy of the draft guidance. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Question proposed, That the clause stand part of the Bill.

Cheryl Gillan: I want to raise three quick points, which may be a result of my own stupidity, but nevertheless I would like to ask the Minister what might happen in hypothetical cases, particularly as they may form the substance of an objection in response to which I hope that the Secretary of State would call upon clause 12(4)(d) and
''determine to take no action.''
First, can the Minister tell me what would happen in the case of an amnesty, where an employer has unfortunately employed somebody who is illegal and faces the full penalty of the law but in the meantime the Government grant an amnesty? That is not impossible; it happens from time to time in the European Union and even in this country. How would an employer be placed in that instance? 
Secondly, I want to know how an employer would be placed if the employment of an illegal was by virtue of a Government programme. An example of such a programme is the ethnic minority outreach initiative,  with which I know the Minister will be familiar because the Government have committed £14 million funding to it from April 2004 to March 2006. I am keen to know whether, if someone is employing someone through a Government programme, that would offer them the immunity that they would deserve because otherwise they might find themselves unwittingly exposed. 
Lastly, there is a problem as far as the unions are concerned; I am tentative about raising this point. The TUC, when it talks about migrant workers in Britain, makes immortal statements, as it does in some of its articles. It states that the 
''blurring by . . . governments of the distinction between refused asylum seekers, illegal working, illegal entry and criminal activity such as trafficking''
makes it 
''difficult for trade unions to identify and present the key issues from the perspective of defending the interests of workers''.
What thought has the Minister given to the representation of workers in that instance? It is an important matter, which has increasingly become blurred over the past few years.

Tony McNulty: As much as I love the TUC and pleased as I was to do a joint statement with it, the CBI and the Home Office about the need for migrant workers, managed migration and the protection of such workers at all levels, I do not accept the premise that, in Government at least, there has been a blurring at the edges of those categories. I do accept the premise that that has been part of the wider public debate, mischievously or otherwise, and we have an opportunity with the five-year plan and the points system to get out from under that and to discuss in a positive sense what the asylum system and the immigration and managed migration system do, and the distinction between them. I accept that as part of my role.
On the issues that the hon. Lady raised, I am a Home Office Minister, so I do not recognise the concept of amnesty. However, I will say in the next breath that the Bill gives the Secretary of State unilateral powers in respect of the civil penalty regime, so it is entirely a matter for the Secretary of State to decide whether to impose penalties or otherwise. If the situation is other than that, I will write to the hon. Lady. 
I believe that that captures the potential of the Hon. Lady's second point about someone being employed in a position as a result of some element of the state not recognising that they were illegal. I can envisage how that may prevail in certain circumstances, not just in the programme that she mentioned, and rather like the rest of the Bill—the appeals part that we have done and the parts to come—that does, I emphasise, need to be seen in all that we are doing to improve processes and structures overall. I take her comments seriously, but, for the reasons that I gave, they are concerns that are met or will be met by guidance, which I accept we do not have—the code of conduct is not guidance. For those reasons, I urge that the clause stand part eventually, if not now.

Cheryl Gillan: I am grateful to the Minister. There are some issues here, and I hope that he will take it upon himself to write to me about them. For example, if a UK company employed somebody in a Spanish territory and, as happened in Spain, the illegal immigrants were granted an amnesty, the employer would no longer be liable. A situation may arise whereby there would be a reasonable defence. With an undertaking from the Minister that he will write to me about that, I am satisfied at this stage.
Question put and agreed to. 
Clause 12 ordered to stand part of the Bill.

Eric Illsley: For the guidance of the Committee, I am minded to suspend in two minutes for at least one hour. I am prepared to carry on with the Committee if we can arrive at a decision acceptable to the usual channels, but obviously that would need the co-operation of all Members.
Clauses 13 to 16 ordered to stand part of the Bill.

Clause 17 - Offence

Humfrey Malins: I beg to move amendment No. 3, in clause 17, page 8, line 27, leave out 'two' and insert 'five'.
The amendment would change the sentence on conviction in a Crown court from two to five years. There can be some really horrible examples of illegal employment, which can be organised by very nasty people. Some of them may deserve a condign sentence. Does the Minister agree with me?

Evan Harris: It is always tempting to think of very bad offences—as the hon. Member for Woking, who is far more experienced in these matters than I am, did—and to seek to increase the maximum penalty. However, would not the sorts of cases that he mentions—we can all think of some—be covered by other health and safety measures with stronger penalties? Is it necessary—perhaps it is—for the Opposition always to seek to ratchet up the tariff on the basis of very bad cases to which we think the legislation would apply, but to which other offences, such as reckless endangerment, and therefore higher penalties, would apply?

Tony McNulty: In the interests of brevity: no; five years too excessive; and nasty stuff can be dealt with in other ways. For example, someone got 14 years imprisonment for the facilitation of trafficking in a really nasty case. As the hon. Gentleman suggests, other cases that are nasty, but not as nasty as trafficking and facilitation, are covered by the rest of the law. Two years is not excessive, but appropriate. That is why it appears in the clause.

Humfrey Malins: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 17 ordered to stand part of the Bill.

Clause 18 - Offence: bodies corporate, I beg to move amendment No. 15, in clause 18, page 9, line 3, leave out from 'has' to 'fact' in line 4 and insert

'the principal responsibility within the body for the creation of the employment knows or believes this.'.

Eric Illsley: With this it will be convenient to discuss amendment No. 99, in clause 18, page 9, line 4, leave out 'an' and insert 'a relevant'.

Humfrey Malins: The clause states that a body is treated as knowing a fact about an employee
''if a person who has responsibility within the body for an aspect of the employment knows the fact.''
That is a wide definition—perhaps too wide. Many people in a body have some responsibility for some aspect of the employment. The buck ought to stop with somebody, such as the principal officer of the body. I have in mind a sports club that I know, within 30 miles of here—I do not want to give more detail than that for obvious reasons—which, in my judgment, employs someone in a part-time capacity who should not be in the country. Of course, I do not have anything to do with that and thus am not open to prosecution, but a number of people in the club are responsible for some aspect of the matter. Truly, the buck should stop with the principal person involved, rather than many people. Let us see if the Minister can justify that very general phrase.

Evan Harris: Amendment No. 99, which is in my name and that of my hon. Friend the Member for Manchester, Withington makes the same point and pinpoints the matter outlined by the hon. Gentleman.

Tony McNulty: I do not accept either amendment, because they would water down the measure. A corporation should not be able to avoid criminal liability for its actions through delegation. We are not putting this Bill on to the statute book simply to play some sort of game with assorted corporations of chasing around to see who can pin the proverbial tail on the donkey in terms of who has the most relevant responsibility. The way the clause is drafted, in four substantive parts, covers sufficiently those who can and should be liable for a breach of this new aspect of the law. Either amendment would water the measure down, and we ask that they should not be pressed.

Humfrey Malins: We may return to this matter at a later stage and, perhaps, in another place, because there is a point of some general importance. However, on this occasion, having heard the Minister's response, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 18 ordered to stand part of the Bill. 
Clauses 19 to 21 ordered to stand part of the Bill.

Clause 22 - Repeal

Question proposed, That the clause stand part of the Bill.

Evan Harris: I rise not to delay the Committee, but to elicit a smile from the Government Whip—[Interruption.] Whether it was worth it or not, I do not know.
I would have liked to celebrate the repeal of sections 8 and 8A of the Asylum and Immigration Act 1996. However, we have not yet tackled the employment of asylum seekers legally here while awaiting a decision, which sometimes takes a long time, and perhaps we shall have an opportunity to tackle that if it is judged that the Bill is wide enough. We cannot say that we have dealt with the restrictions on employment in the immigration and asylum arena  while the hiatus exists—I know that many people share my view—whereby asylum seekers are usually prevented from working. This is not the time or place to go into that, but I did not want this repeal to go through without making that point. 
Question put and agreed to. 
Clause 22 ordered to stand part of the Bill 
Further consideration adjourned.—[Joan Ryan.] 
Adjourned accordingly at twenty-three minutes to Five o'clock till Tuesday 25 October at half-past Ten o'clock.